author:
Andree Layton Roaf, Justice.
      Robert L. Brown, Justice,

text:
    Barbara WADE and Charles Wade v. Geoffrey P. GRACE and Greer Grace
    95-102
    902 S.W.2d 785
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995

      James Swindoll and Stephen Whitwell, for appellants.

      Anderson & Kilpatrick, by: Overton S. Anderson and Frances E. Scroggins, for appellees.
   Andree Layton Roaf, Justice.

This case arises from a boating accident which occurred on Lake Hamilton. Appellants Barbara Wade and Charles Wade filed an action to recover for injuries sustained as a result of the accident. The jury returned a verdict in favor of the appellees, Geoffrey and Greer Grace. We affirm.

On the evening of May 23, 1992, Barbara Wade was operating a party barge owned by her and her husband, Charles. Mrs. Janet Cameron was a passenger on the party barge. At approximately 10:00 p.m., the party barge was involved in a collision with a ski boat operated by Geoffrey Phillip Grace and owned by his stepmother, Greer Grace. Geoffrey Grace was seventeen years old at the time of the accident, and seven other teenagers were riding in the boat.

Janet Cameron and her husband, Chester Cameron, brought suit against Geoffrey and Greer Grace. Geoffrey and Greer Grace answered the Camerons’ complaint, filed a counterclaim against the Camerons, and filed a third-party complaint against Barbara and Charles Wade. Subsequently, the Wades filed a third-party counterclaim against Geoffrey and Greer Grace. The Wades principally asserted that Geoffrey Grace was operating the ski boat in a negligent manner. The Wades’ claims against the Graces, which are the subject of this appeal, were the sole claims tried to the jury. The record reflects that the remaining claims were dismissed with prejudice.

The appellants raise four points on appeal: (1) the trial court wrongly excluded testimony and law regarding good boating practices on Lake Hamilton; (2) the trial court wrongly excluded evidence that the minors involved were in possession of alcohol and were drinking alcohol at the time of the accident; (3) the trial court improperly restricted Officer Richard Rowlett from giving expert testimony with regard to deformation of light filaments; and (4) appellants were wrongly denied the opportunity to put on expert testimony through John Bentley either in their case-in-chief or in rebuttal of appellees’ expert witness.

I. Good Boating Practices

Robert Charlesworth, the Marine Patrol Supervisor with the Garland County Police Department and an investigating officer on the scene of the accident, was called as a witness by the appellants. Officer Charlesworth testified that the purpose of navigation lights is to alert other boaters of the position of your boat. He stated the red lens is on the left side of a boat, the green lens is on the right side, and the white light is commonly called the stern (rear of boat) or anchor light.

Officer Charlesworth testified that if you are approaching a boat and see the red light, that boat has the right-of-way. Counsel for the appellees Ejected to the testimony on the basis that it was improper for the witness to inform the jury which boat had the right-of-way. Counsel for the appellants asserted the witness was simply testifying to “general boating practice” on the lake and how you know to go to the right, or toward the stern of the boat that is approaching when the red light is displayed. The trial court sustained the appellees’ objection.

On appeal, the appellants assert the trial court erred in excluding the testimony because appellants were simply attempting to establish the “rules of the road” for good boating practice, which are not as familiar to all jurors as the rules of the road for automobiles. The appellants rely upon Parker v. Price, 241 Ark. 940, 411 S.W.2d 12 (1967), where the appellant asserted the jury should have been instructed that the standard of care imposed on a boat operator is the exercise of “due diligence and maritime skill” rather than simply ordinary care. In affirming the circuit court’s decision, we noted that the appellant’s requested instruction was simply another way of stating the operator should act as a reasonably careful person would act under the circumstances. Further, we commented:

In the case at bar, the trial court properly permitted two witnesses of considerable experience with watercraft to testify concerning facts constituting good or poor seamanship. They were also permitted to give opinion testimony based on hypothetical questions.
Thus, the jury had for its consideration testimony going to the main issue — whether the boats in question were operated with reasonable care under all the circumstances, including, but not limited to, maritime skill.

In the instant case, the appellants place significance on our statement regarding the testimony concerning good or poor seamanship.

Arkansas Rule of Evidence 702 provides expert testimony may be admissible if such specialized knowledge will aid the trier of fact in understanding the evidence or in determining a fact in issue. Williams v. Ingram, 320 Ark. 615, 899 S.W.2d 454 (1995). Whether a witness may give expert testimony rests largely within the sound discretion of the trial court, and that determination will not be reversed absent an abuse of discretion. Id. On appeal, the appellant must demonstrate that the trial court has abused its discretion. Id.

In Williams, supra, the appellant asserted the trial court erred in excluding testimony from a maritime and marine safety expert regarding the requisite standard of care and the danger of river currents. In affirming the decision of the trial court, we concluded that nothing in the expert’s deposition indicated that the knowledge he displayed was so specialized that it was beyond the ability of the trier of fact to understand and draw its own conclusions. We noted the potential dangers of the Arkansas River’s currents were not beyond the comprehension of the jury.

In the instant case, the appellants have failed to establish that the trial court abused its discretion. The appellants simply assert the officer would testify regarding the general boating practices on Lake Hamilton. At one point, counsel for the appellants even stated the testimony would simply confirm “what everybody uses as ordinary care.” Further, counsel for the appellants asserted the officer’s testimony was not “even really an opinion . . . that’s what you do on the lake.” Thus, there is no indication that the witness had specialized knowledge that went beyond the general knowledge of an average person. Even assuming Charlesworth was not testifying as an expert, it is within the discretion of the trial court to limit the testimony of witnesses and that decision will not be reversed absent a manifest abuse of that discretion. Garner v. Kees, 312 Ark. 251, 848 S.W.2d 423 (1993).

Further, it is the duty of the judge to review the evidence presented, decide what the applicable law is, and instruct the jury. Whitlock v. Smith, 297 Ark. 399, 762 S.W.2d 782 (1989); See also Montgomery v. Butler, 309 Ark. 491, 834 S.W.2d 148 (1992). The jury was instructed that there was in force a statute which provided “every motorboat shall have a light sufficient to make the motorboat’s presence and location [known] to any and all other vessels when in operation during the hours of darkness.” See Ark. Code Ann. § 27-101-203(a)(2) (Repl. 1994). The jury was further instructed that “the boat must have a red light on the left side of the bow, a green light on the right side with a horizon — a white horizon light aft.” Because the judge should instruct the jury regarding the applicable law, the officer was properly prohibited from testifying as to the “rules of the lake” and who had the right-of-way.

The appellants further assert the trial court erred in refusing to instruct the jury regarding the federal law on navigable waters. Counsel for the appellants did argue that federal law applied; however, the appellants’ requested jury instructions are not in the abstract or the record. It is well established that a party cannot complain about the failure to give an instruction when he did not proffer the instruction. ARCP Rule 51; Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995). Further, we have said that the proffered instruction must be included in the record and in the abstract to enable the appellate court to consider it. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). Consequently, we will not address this issue.

II. Evidence of Intoxication

At trial, counsel for the appellants sought to admit evidence that Geoffrey Grace was intoxicated at the time of the collision. Counsel for the appellants asserted there were six beer cans in the water immediately after the accident, and counsel for the appellees stated Geoffrey Grace would testify he had one beer. In addition, the appellants proffered the testimony of Officer Paul Hatch of the Arkansas Game and Fish Commission, who inspected the Grace boat on the night of the accident. Officer Hatch stated that he observed Geoffrey Grace and smelled alcohol. He described the smell as a medium odor — “not heavy and not light or not excessive.” However, Hatch observed Grace walk and speak, and he could not say that Grace was under the influence of alcohol. The appellants also proffered the testimony of Officer Richard Rowlett of the Arkansas Game and Fish Commission. Officer Rowlett testified he smelled the odor of intoxicants on Geoffrey Grace. Rowlett described the level as moderate, and he testified he did not observe any other evidence of intoxication.

The trial court stated the evidence regarding alcohol was not admissible unless there was some evidence that Geoffrey Grace was in fact intoxicated, and the trial court concluded there was no such evidence. The court found that even the testimony regarding beer cans found in the water was inadmissible because it was prejudicial. Further, the court concluded the fact that the teenagers may have been drinking underage had nothing to do with whether they were intoxicated or negligent.

We have stated that voluntary intoxication may be a factor to be considered by the trier of fact in determining negligence. City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995). Further, Ark. Code Ann. § 27-101-202(7) (Repl. 1994) provides no person shall operate any motorboat while intoxicated. However, Arkansas Rule of Evidence 403 allows a trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice or possibility of confusion of issues. The balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge and his decision on such a matter will not be reversed absent a manifest abuse of discretion. Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992).

We hold the appellants have failed to establish that the trial court abused its discretion. The trial court found there was simply no evidence that Geoffrey Grace was intoxicated, and, as to beer cans both in the water and on the party barge, the trial court noted that “we have jurors that when they hear the word beer cans, it’s all over for either side. And I don’t admit those unless there’s evidence of intoxication.”

It has been stated that courts are divided as to whether, in traffic accident cases, evidence that one of the motorists had recently consumed an alcoholic beverage should be admitted in the absence of evidence that it rendered him or her unfit to drive. Clifford S. Fishman, Jones on Evidence: Civil and Criminal § 11:15 (7th ed. 1994). In Fisher v. Dye, 125 A.2d 472 (Pa. 1956), the Supreme Court of Pennsylvania recognized that “while proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which provides unfitness to drive.” See also Hannon v. City of Philadelphia, 587 A.2d 845 (Pa. 1991). Further, it is within the discretion of a trial court to refuse to admit evidence that a driver ejected from his vehicle after an accident an open whiskey bottle because it could be determined that the marginal probative value of such evidence was substantially outweighed by the possibility of unfair prejudice. Gardner v. Smith’s Transfer Corp., 5 Fed. Evid. Rep. 67 (4th Cir. 1979).

III. Testimony of Officer Rowlett

One issue contested at trial was whether the white light on the aft of the party barge (stern/anchor light) was on at the time of the collision. The appellants sought to present the testimony of Officer Rowlett, one of the investigating officers, who was trained in filament deformation. The appellees contended Rowlett should not be allowed to testify that he examined the filaments in the white bulb from the party barge and, in his opinion, the light was on at the time of the collision. The appellees asserted they did not learn of Rowlett’s testimony until the opening statement by counsel for appellants and the failure to disclose was a violation of ARCP Rule 26 regarding discovery.

In response to an interrogatory requesting the names of persons who would offer opinions, expert or otherwise, the Wades stated that other than physicians who were expected to testify regarding medical treatment, “no other expert witnesses have yet to be determined.” The response further stated that “Lay witnesses are expected to testify as to their observations which may include some opinions based upon observations or mixed questions of opinion or observation.” The trial judge commented that “this is not the way to try a lawsuit,” and he determined the fair thing was to only allow Rowlett to testify as to what he observed when he made his investigation. The trial court held that Rowlett could not give an opinion as to whether the light was on or off.

At trial, Rowlett testified he attended a school regarding the investigation of boating accidents. Officer Rowlett testified that he observed the aft light and retained the bulb; he stated, “the light is deformed.” At an in camera hearing, counsel for the appellants proffered additional testimony from Officer Rowlett. Rowlett stated that the bulb was deformed or distorted, and such deformation indicated the bulb was on at the time of the collision.

Although Rowlett was listed as a witness, he was not disclosed as an expert. Counsel for the appellants stated he visited with the officer the day before the trial and found that the officer was in possession of the bulb recovered from the accident. The appellants principally assert that the disclosure of Rowlett as a witness was sufficient, and that according to Banks v. Jackson, 312 Ark. 232, 848 S.W.2d 408 (1993), there must be “at least a passive concealment before any imposition of a sanction.” Further, the appellants submit the appellees presented no reason for their failure to depose Officer Rowlett.

Arkansas Rule of Civil Procedure 26(e)(1) provides:

A party is under a duty to seasonably supplement his response with respect to any questions directly addressed to .. . the identity and location of each person expected to be called as a witness at trial, and in the case of expert witnesses, the subject matter on which he is expected to testify, and the substance of his testimony.

Further, we have stated that a trial court has broad discretion in matters pertaining to discovery, and that discretion will not be second-guessed by the appellate court absent an abuse of discretion that is prejudicial to the appealing party. Banks, supra; Morris v. Cullipher, 306 Ark. 646, 816 S.W.2d 878 (1991).

As to the requirement of a concealment, the Banks case addressed a violation of ARCP Rule 26(e)(2)(B). Rule 26(e)(2)(B) provides a party is under a duty to seasonably amend a prior response if he obtains information which would make the prior response, though correct when made, no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment. There is no requirement that the trial court make a finding of concealment under Rule 26(e)(1).

Under the circumstances, we cannot say the trial court abused its discretion by allowing the witness to testify as to his observations and prohibiting him from providing his opinion regarding whether the light was on at the time of the collision.

IV. Testimony of John Bentley

The appellants sought to present the testimony of John Bentley, an expert in accident reconstruction. Once again, the appellees objected to such testimony based upon a failure to respond to discovery requests. The trial of this matter began on July 12, 1994. At an in camera hearing, it was determined that the counsel for the appellees received a letter on June 21, 1994, stating that Bentley might be used as an expert witness to rebut the testimony of Lonnie Buie, an accident expert expected to be called as a witness by the Graces. Counsel for the appellees asserted that the week before the trial the appellees asked for the opportunity to take Bentley’s deposition, but he was out of town. Mr. Bentley’s deposition was taken the night before the trial.

Counsel for the appellants stated he was hired “last Tuesday to try this lawsuit” and “we invited John [Bentley] as soon as we could.” The trial court concluded it was unfair to wait until the day before trial and provide an expert in this type of case. The trial court commented that it had become a fad for plaintiff’s lawyers to “hire an expert and call him a consultant and play a game until right up before trial.” Subsequently, the appellants attempted to present the testimony of Bentley in rebuttal of the testimony of Lonnie Buie.

Lonnie Buie, Jr., an electrical engineer, testified that based upon the lack of deformation of the filament within the bulb, it was his opinion the white stern light on the party barge was not on at the time of the collision. Buie stated that a heated filament is more pliable, and tests have established that on impact, if the light is on, it will elongate. During cross-examination by counsel for the appellants, Buie testified that if a bulb filament is deformed, then it was on at the time of the accident. Buie further stated that when the ski boat hit the canopy of the party barge, the element of the light would have deformed had it been on. The appellants asserted that the testimony of Bentley would rebut the testimony of Lonnie Buie with respect to whether the force applied to the canopy was sufficient to deform the bulb.

First, the appellants assert that the appellees knew nineteen days before trial that Bentley would be called as an expert witness, and the appellees did in fact take Bentley’s deposition. The appellants rely upon Banks v. Jackson, supra, where we noted that last-minute depositions are not unique in trial preparation. In Banks, however, we simply held the trial court’s decision allowing the testimony was not an abuse of discretion. The trial court has broad discretion in matters pertaining to discovery. Id. Also, the opposing party in Banks was informed of the substance of the testimony which would be offered by the expert, including his opinions.

Second, rebuttal testimony must rebut the testimony advanced by the other side and should not consist of testimony which might have been advanced as proof in chief. Phillips v. McAuley, 297 Ark. 563, 764 S.W.2d 424 (1989). The exclusion of testimony offered on rebuttal is within the discretion of the trial court. See Wilkins v. El Dorado & Wesson R.R., 282 Ark. 236, 668 S.W.2d 6 (1984).

More significantly, the appellants did not make a proffer of the testimony which Mr. Bentley would have presented. Counsel for appellants simply asserted that Bentley’s testimony would rebut the testimony of Lonnie Buie. It is well established that in order to challenge a ruling excluding evidence, an appellant must proffer the excluded evidence so we can review the trial court’s decision, unless the substance of the evidence is apparent from the context. A.R.E. Rule 103(a)(2); Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). In the instant case, there was no proffer and the substance of the answer is not apparent. There is no way of even knowing if Mr. Bentley’s testimony would have been inconsistent with Mr. Buie’s testimony. Accordingly, this argument is not preserved for review.

Affirmed.

Brown, J., and Holt, C.J., concur.

Dudley, J., not participating.

Robert L. Brown, Justice,

concurring. I concur in the result but believe the trial court used the wrong standard in excluding all evidence of alcohol consumption by appellee Geoffrey Philip Grace in this case. However, because the correct standard was not argued to the trial court, I cannot say that the court abused its discretion in excluding the evidence.

This case appears to raise an issue which this court has not addressed directly in the past. The circuit court excluded evidence of Grace’s consumption on the basis that it was not relevant “unless there’s evidence of intoxication.” Without intoxication, the court concluded that evidence of mere consumption of alcohol would be too prejudicial. I disagree that a person must be drunk or legally intoxicated for proof of alcohol consumption to be relevant. Rather, the proper test is that alcohol consumption is relevant when accompanied by other evidence of impairment. See Clement v. Consolidated Rail Corp., 130 F.R.D. 530 (D.N.J. 1990); Kaeo v. Davis, 719 P.2d 387 (Haw. 1986).

In Kaeo v. Davis, supra, the Hawaii Supreme Court vacated a judgment in favor of the defendant, who was driving the car with the injured party as a passenger, and remanded for a new trial when the trial court had excluded evidence of the driver’s drinking. The driver had consumed “several beers” that afternoon before the accident at dusk. The trial court in Kaeo had concluded, similar to the instant case, that any evidence of drinking regardless of the amount would raise undue prejudice against the driver. The Supreme Court concluded that this analysis was error and constituted an abuse of discretion:

Granted, the evidence of drinking was prejudicial. Still, evidence with a capacity for unfair prejudice cannot be equated with testimony simply adverse to the opposing party; for evidence is only material if it is prejudicial in some relevant respect. 1 J. Weinstein and M. Berger, Evidence ¶ 403[03] (1985) (citation omitted). We are not willing to assume “any indication of drinking” is so unfair to the drinking driver that the opposing party must be denied his right to have relevant and material evidence considered by the trier of fact. Nor are we willing to concede the trial juries, with guidance from the trial court, are incapable of rendering objective fact determinations in trials of negligence actions in which drinking is involved.
The judge’s ruling of inadmissibility, it appears, was influenced by representations that in pre-trial depositions Miss Kido and Samuel Taupo testified Davis was sober prior to the accident and the investigating officer detected none of the tell-tale signs of drunkenness when he questioned Davis at the accident scene. These, however, were matters that could have been offered instead for assessment by the trier of fact along with the evidence of drinking by the driver. The trial judge’s decision not to permit the jury to hear such evidence was an abuse of discretion amounting to error, and we cannot say it had no effect upon the outcome of the trial. Since our conclusion compels a retrial of the action, we proceed to the issue raised by the plaintiff in her cross-appeal.

Kaeo, 719 P.2d at 392.

The Supreme Court in Kaeo did state that had the driving of the car been wholly beyond criticism, the trial court’s ruling would have been correct. But there was evidence of speeding and the driver’s taking his eyes off the road while attempting to round a curve. The Supreme Court observed that there was enough from which the jury could conclude that the driver was impaired in his ability to perceive the damages with clarity, make decisions with prudence, and operate the vehicle with the skill and caution required by law.

It is clear that mere alcohol consumption by itself cannot be equated to unfitness to drive. City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995); Clement v. Consolidated Rail Corp., supra. But when coupled with other evidence of impairment and unfitness to drive, such as erratic driving, it is relevant. Jones v. Freese, 743 S.W.2d 454 (Mo. App. 1987); McCall v. Liberty, 248 Ark. 619, 453 S.W.2d 24 (1970). That is what we have in the matter before us.

The circumstances of this case were that it occurred at about 10:00 p.m. Eight teenage boys were in a ski boat operated by Grace on Lake Hamilton. Grace was 17 at the time and admitted to drinking one beer before the accident. According to two investigatory officers, Grace was not intoxicated but had a “moderate” or “medium” smell of alcohol about him at some point after the collision. There were six empty beer cans around the scene of the accident. Grace at some time after the collision tested at .04 blood/alcohol content on a field breathalyzer test, according to the proffered testimony of Officer Richard Rowlett, but admittedly field breathalyzer tests are of questionable probative value. The complaint by the Wades alleged that the ski boat was speeding and that the driver had failed-to keep a proper lookout. Grace admitted to driving 30 miles per hour. The Wades theory of the case was that the ski boat attempted to pass the party barge on the wrong side.

To be sure, the central issue in this case was whether the party barge had the appropriate lighting. But any impairment of the driver, due to alcohol consumption, coupled with allegations of speeding was an appropriate matter for the jury to weigh.

I am fearful that this case will be precedent for the proposition that only proof of legal intoxication is relevant in a negligence case involving reckless driving of cars or boats. That should not be the law. Nevertheless, because our trial courts are granted great discretion in this area, and because the correct standard was not argued to the trial court and, indeed, was not argued on appeal, I cannot say that the trial court abused its discretion.

Holt, C.J., joins in this concurrence.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Douglas James CLAYTON v. STATE of Arkansas
    CR 94-1446
    902 S.W.2d 772
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995

      Ralph M. Cloar, for appellant.
    No response.
   .

Per Curiam.

Appellant Douglas James Clayton petitions for rehearing on the basis that this court erred in dismissing his appeal on the basis that his notice of appeal was ineffective. See Clayton v. State, 321 Ark. 217, 900 S.W.2d 537 (1995). According to Clayton, we previously granted his motion for rule on the clerk, permitting him to lodge his transcript. See Clayton v. State, 319 Ark. 291, 890 S.W.2d 602 (1995) (Clayton I). We agree that we erred in dismissing the appeal, and we direct the Clerk of the Supreme Court to reinstate the appeal.


text:
    Damien Wayne ECHOLS v. STATE of Arkansas
    CR 94-928
    902 S.W.2d 781
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., and Vada Berger, Asst. Att’y Gen., for appellee.
   Per Curiam.

In 1994 Damien Wayne Echols was found guilty by a jury of capital murder and sentenced to death. The record has been lodged in this court on appeal. Counsel for appellant Echols filed the appellant’s brief on June 19, 1995. On June 27, 1995, appellant filed a pro se motion in which he states that he waives all points for appeal which concern the sentence of death. He desires to limit the appeal to those issues which concern the judgment of conviction. Appellant’s pro se motion is now before us.

We remand the matter for findings by the trial court on the questions of whether appellant Echols has been advised by counsel with respect to abandoning issues already raised and whether appellant will submit himself to a judicial review to be held in the trial court to consider whether he fully appreciates his position and can make a rational choice with respect to pursuing or abandoning issues on appeal concerning the sentence of death.

If the trial court determines that appellant has reached his decision with benefit of counsel and will submit himself to a judicial review of his capacity to abandon the death penalty issues raised on appeal, the trial court is directed to hold a competency hearing. An appellant sentenced to death will be permitted to abandon a state appeal of a death sentence only if he has been judicially determined to have the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation of the death sentence; that is, he must be determined to have the capacity to understand the choice of life or death and to knowingly and intelligently waive any and all rights to appeal the death sentence. See Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988).

If a competency hearing is held and the lower court determines appellant to have made a knowing and intelligent waiver of the issues pertaining to the death sentence, the record of the hearing and the court’s findings shall be returned to this court for review. We will review the proceeding to determine whether appellant Echols had the capacity to understand the choice between life and death and to knowingly and intelligently waive his rights to challenge the sentence of death on appeal. See Franz v. State, supra. The standard of review is whether the trial court’s conclusion is clearly erroneous. See Franz, supra, citing Rector v. State, 277 Ark. 17, 638 S.W.2d 672 (1982).

Remanded.


text:
    Earven HADLEY, Jr. v. STATE of Arkansas
    CR 95-657
    902 S.W.2d 231
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995

      Baim, Gunti, Mouser, De Simone & Robinson, by: Greg Robinson, for appellant.
    No response.
   Per Curiam.

Appellant Earven Hadley, Jr., who was represented by Gregory N. Robinson, was convicted of rape and incest, and the jury recommended a twenty year sentence on each count. On October 7, 1994, the circuit court entered a judgment and commitment order that ordered the sentences on the two counts to be run concurrently. On October 13, 1994, the appellant filed a timely notice of appeal for that judgment. On November 4, 1994, the circuit court entered an amended judgment and commitment order which provided that the sentences should run consecutively. On December 1, 1994, the appellant filed a motion to modify the amended sentence. A hearing was held on that motion on December 21, 1994, and the circuit court orally denied the motion at that hearing. No written order of denial was entered. On Decernber 30, 1994, the appellant filed a notice of appeal from the November 4, 1994 amended judgment and commitment order.

The notice of appeal regarding the original judgment entered on October 7, 1994, was timely filed. The notice of appeal filed on December 30, 1994, for the amended judgment entered on November 4, 1994, was invalid. The motion to modify the amended sentence was a motion made for post conviction relief and that is not a motion which would extend the time for filing a notice of appeal under Ark. R. Crim. R 36.9. Moreover, even if the motion to modify were a motion which could extend the time period for filing a notice of appeal, it would have been deemed denied on December 31, 1994, which means the notice of appeal filed on December 30, 1994, was premature. We, therefore, treat this motion for rule on the clerk as a motion for belated appeal with regard to the second notice of appeal and ■ grant it and direct the Clerk of the Supreme Court to file the record in this matter.

A copy of this order will be sent to the Committee on Professional Conduct.


text:
    Eric Wayne JOHNSON v. STATE of Arkansas
    CR 95-416
    902 S.W.2d 773
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995

      J. F. Atkinson, Jr., for appellant.

      No response.
   .

Per Curiam.

Eric Wayne Johnson, by his attorney, J.F. Atkinson, Jr., has filed a motion to dismiss appeal. The record in this appeal was filed with the clerk of this court on April 19, 1995. In the motion to dismiss, appellant’s attorney attaches as an exhibit a copy of correspondence he received from appellant in which appellant requests his attorney discontinue the appeal. Our review of this correspondence shows appellant’s request may be the result of coercion. Therefore we remand the case to the trial court to determine whether appellant has voluntarily asked us to dismiss this appeal.


text:
    Christopher Ray STONE v. STATE of Arkansas
    CR 94-61
    902 S.W.2d 231
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995

      Marcus Vaden and Boyd Tackett, Jr., for appellant’s.attorneys, Frank Shaw and F.N. “Buddy” Troxell.
    No response.
   Per Curiam.

Christopher Ray Stone was convicted of first degree murder and sentenced to life imprisonment. A timely notice of appeal was filed by his attorneys, Frank Shaw and F.N. “Buddy” Troxell, yet they failed to file a brief on Stone’s behalf with this Court, despite having been granted appropriate extensions of time to do so. By per curiam order of this Court, dated January 3, 1995, a Master was appointed to conduct a hearing and make findings of fact as to whether Mr. Shaw and Mr. Troxell had a meritorious defense to their failure to file a brief as prescribed by Ark. Sup. Ct. R. 4-3.

The Master conducted a hearing on February 1, 1995, at which time Mr. Shaw and Mr. Troxell were present and represented by counsel. After hearing testimony of witnesses and considering the evidence, the Master made the following Findings of Fact:

(1) Mr. Shaw and Mr. Troxell were attorneys of record in the case of Stone v. State, filed a notice of appeal and were jointly obligated and responsible for perfecting the appeal. All pleadings filed in this case, either by Shaw or Troxell, were on behalf of both attorneys.

(2) After two extensions, the record was filed late on February 20, 1994.

(3) The appellant’s brief was first due to be filed April 2, 1994.

(4) The Motion of Shaw and Troxell to be relieved as counsel was denied on March 7, 1994. Evidently this was in response to a motion filed by Shaw on February 17, 1994 to be relieved.

(5) The Motion by Shaw and Troxell for reconsideration dated March 9, 1994 was denied March 28, 1994. Justice Hays and Glaze would grant.

(6) A Motion to extend the brief time 120 days was filed March 30, 1994. It was granted in part; the brief due by July 1, 1994.

(7) The brief was not filed on July 1, 1994 and no pleading was filed by the attorneys with the Court until after the State filed a motion to dismiss on September 21, 1994.

(8) On September 27, 1994 the attorneys answered the motion to dismiss and requested another extension to .file the brief.

(9) On October 10, 1994 this Court denied the motion to dismiss, granted another 60 days to file the brief, stating it was the FINAL EXTENSION. The brief was to be filed by December 19, 1994.

(10) On December 7, 1994 Ray Hartenstein filed a motion to be substituted as counsel.

(11) This Court granted that motion in part but ordered Shaw and Troxell to show cause for failure to file a brief in this case.

(12) No brief was filed on December 19, 1994.

(13) Shaw and Troxell have failed to prove by a preponderance of the evidence meritorious reasons for failing to file a brief as required, either on July 1, 1994 or December 19, 1994.

(14) Mr. Shaw was primarily responsible for filing the brief, but both counsel were legally responsible.

(15) Neither counsel made substantial efforts to prepare the brief for filing. Instead, both counsel spent their time trying to get Mr. Hartenstein in a position to file the briefs.

(16) Both Counsel knew of the July 1, 1994 deadline and Mr. Shaw allowed it to pass without any action.

(17) Both counsel had a responsibility professionally to file the brief in this case and there is no good reason they could not have done so, or caused it to be filed. They had 10 months to do so before this court cited them to show cause.

On February 13, 1995, the Clerk of this Court furnished copies of the Master’s Findings of Fact to counsel for the parties and advised counsel that, pursuant to Ark. R. Civ. P. 53(e)(2), they had twenty days in which to file objections. Neither party filed objections with this Court. A motion to dismiss the contempt proceedings was denied by this Court on February 20, 1995.

From the foregoing, we hold that both Mr. Shaw and Mr. Troxell are in contempt for failing to comply with our directives. They have demonstrated not only mismanagement of their client’s affairs, but also an inability to fulfill their obligations to this Court in failing to file a brief, even after extensions of time were granted to do.so. Inasmuch as Mr. Shaw was primarily responsible for the filing of the brief, we fine him $500 and Mr. Troxell $250, and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct. See Fellows v. State, 308 Ark. 258, 823 S.W.2d 893 (1992).


author: Robert H. Dudley, Justice.

text:
    Mildred SPEARS v. STATE of Arkansas
    CR 94-1389
    905 S.W.2d 828
    Supreme Court of Arkansas
    Opinion delivered September 11, 1995

      McCullough Law Firm, by: R.S. McCullough, for appellant.

      Winston Bryant, Att’y Gen., by: Joseph V Svoboda, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

A jury found appellant Mildred Spears guilty of capital murder and conspiracy to commit capital murder. The trial court sentenced her to life imprisonment without parole for the capital murder. We affirm the judgment of conviction.

Blytheville police were summoned to the Chickasaw Courts apartments at 1:14 a.m., November 9, 1993, where they found Vernon Gray’s corpse lying outside Bernita Webb’s apartment. Gray, who was appellant’s live-in companion, had been shot twice in the head. Appellant, who was inside Bernita Webb’s apartment, had heard the two shots and saw her companion’s body on the ground outside the apartment, and told the police that she and Gray had come to Blytheville from Milwaukee, Wisconsin, and that someone had been threatening him since their arrival. She stated that immediately before the murder she and Gray walked out of Webb’s apartment to get some clothes from their car when someone stopped Gray and asked if they knew each other. Gray said they had met at the Top Spot night club. She stated that she went back into Webb’s apartment and heard the sound of the two gunshots.

Later that same morning appellant gave the first of two additional statements in which she admitted that she had contracted to have Gray shot. In the first statement she said that she and Gray lived with their child and another child she had by a prior marriage and that he had abused all of them over a two-and-a-half year period, and the abuse was so serious it caused her to lose custody of the children. She stated that on one occasion Gray shot her, and as a result she was forced to go to a women’s shelter. She said that he took her money, once beating her because of a dispute over fifty cents, and that he took her car from her. She stated that he would not allow her to leave.

Appellant told police that she had been thinking about “having something done” to Gray during the seven months that the children had been in foster care. She stated that a woman in Milwaukee named Janice Thompson gave her the phone number of someone in Blytheville and that she could call that person if she was serious about having something done to Gray. Appellant told the police she finally made the call after enduring additional abuse, and a man named Jackie answered. She stated they agreed that Jackie would hurt Gray in exchange for the drugs that Gray would have on his person. She said that she did not “necessarily” want him killed, just for Jackie to “do something to him” because she was tired of the abuse.

Appellant told police that Jackie was supposed to have “done it” on Monday night, November 8th, but when nothing happened by 10:00 p.m., she called Jackie. He told her he would be there at midnight. She said that she left Webb’s apartment at 12:10 a.m. to pick up her son, and when she returned nothing had happened. She asked Gray to go to the car with her to get some clothes. She said that she did this because it was the last chance for anything to happen, since she and Gray were to leave for Wisconsin the next morning. She said she and Gray walked out to the car, got the clothes, and as they were walking back to the apartment, a man approached them and asked Gray if they knew each other. Appellant left the two of them, went inside the apartment, and then heard two gunshots. When she looked out the window, she saw Gray lying on the ground.

Appellant made an additional statement on November 10 at 12:50 p.m. This time she said that her friend Bernita Webb actually contacted her cousin and he killed Gray. Appellant said that she told Webb that she wanted Gray “paralyzed” so that he could not continue to abuse her and the children. She said that she had agreed to pay the man one thousand dollars and the statement about a person named Janice in Milwaukee giving her a phone number was false. Appellant said there had been two foiled attempts to shoot Gray, rather than one, as she had previously stated. She said she arranged with Jackie to shoot Gray because she was tired of the physical abuse and tired of Gray taking her money and other property.

Tapes of both statements were played to the jury over appellant’s objection. The basis of the objection was that the statements by appellant contained statements made by Jackie Jones and Bernita Webb and those statements were hearsay. The trial court overruled the objection since the statements were made by co-conspirators. Jones and Webb were also charged with Gray’s murder.

Richard Razor testified that appellant also approached him about shooting Gray, but that he refused to do it.

Angela Redd, Jackie Jones’s girlfriend, who also lives at the Chickasaw Courts, testified that Jones came to her apartment at about 2 a.m. on November 9. Willie May Young, owner of the Top Spot night club, testified that Jones worked there as a disc jockey.

Appellant made motions for a directed verdict on the charges of capital murder and conspiracy to commit capital murder. She argued that: (1) there was no proof she intended to have Gray killed; therefore, there was insufficient evidence to sustain a conviction for capital murder or conspiracy to commit capital murder; and (2) there was no corroborating evidence for her confession.

The trial court denied the motions. In addressing appellant’s argument that there was no proof that she intended to have Gray killed, the court ruled that her statement that she did not want him “necessarily killed” was open to different interpretations and therefore should be submitted to the jury. On the one hand, the court reasoned, she could have meant that she did not want him killed, but on the other hand, she could have meant that if getting him killed was the only way to get the job done, then it was permissible to kill him. The trial court additionally found that there was strong circumstantial evidence that appellant wanted Gray killed since she came with him from Milwaukee to Blytheville, contacted the killer in Blytheville to have him attacked, and then contacted the killer either two or three times, depending on which statement was believed, to make sure he completed the job, and also the proof showed that the killer showed up at the agreed-upon time and twice shot Gray in the head. The trial court further observed that appellant said that she had been trying to get away from Gray for months, contacted the gunman when she could not get away, and then got Gray to go out to the car where the gunman intercepted them and twice shot him in the head.

On appeal, appellant continues to argue that the State’s proof does not show that she “necessarily” intended to have Gray killed. The trial court’s ruling was correct that, since the statement was open to different interpretations, a directed verdict was improper. In addition, the State’s other evidence constituted substantial evidence from which the jury could find the requisite intent without resorting to speculation or conjecture. See Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). Intent is seldom capable of proof by direct evidence; it usually must be inferred by the circumstances of the killing. Akbar v. State, 315 Ark. 627, 869 S.W.2d 706 (1994). The intent necessary for murder may be inferred from the type of the weapon used, the manner of its use, and the nature, extent, and location of the wounds. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991); Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987). In addition, one is presumed to intend the natural and probable consequences of one’s actions. Furr v. State, 308 Ark. 41, 822 S.W.2d 380 (1991).

Appellant’s second challenge to the sufficiency of the evidence is that her statements were not corroborated as required by law. Contained within this point is a sub-argument that was not raised at trial. Appellant contends that the State “improperly charged her, which perhaps resulted in the jury being unable to render a verdict on both offenses charged due to the confusion created by the same.” As this argument was not raised at trial, and it is well settled that this court does not address arguments raised for the first time on appeal and an appellant may not change the basis of his argument, we do not address this issue. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Even in cases where life without parole is imposed, this court’s duty is only to examine the record for error on objections decided adversely to an appellant. Ark. Sup. Ct. R. 4-3(h).

Appellant’s argument that her statements were not corroborated as required by law is without merit. Section 16-89-111 of the Arkansas Code Annotated provides, “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” Id. § 16-89-111(d) (1987). This statute only requires proof that the crime was committed by someone. Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991). Here, there was proof that: (1) Vernon Gray was killed outside Bernita Webb’s apartment at the Chickasaw Courts; (2) his death was the result of a homicide; (3) appellant attempted to hire Richard Razor to kill Gray; (4) a man named Jackie Jones was at his girlfriend’s apartment in the Chickasaw Courts shortly after the murder; and (5) Jackie Jones was a disc jockey at the Top Spot nightclub, which corroborated appellant’s statement that Gray had said he knew the man from the Top Spot. Thus, the trial court correctly found that there was corroborating evidence that the crime was committed by someone in the manner described by appellant in her confession. Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985); see also McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984).

Appellant’s next assignment is that the trial court erred in admitting appellant’s two taped confessions because they contain hearsay statements made by Jackie Jones and Bernita Webb. The trial court ruled that the statements that appellant said were made by Jones and Webb were those of co-conspirators and admissible under A.R.E. Rule 801(d)(2)(v).

Even if the statements of Jones and Webb were offered for the truth of the matter asserted, an issue we do not decide, a statement made by a co-conspirator during the course and in furtherance of a conspiracy is an admissible exception to the hearsay rule. A.R.E. Rule 801(d)(2)(v); see also Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). Where an actual criminal act is performed by an alleged accomplice, the accomplice’s statements made during the transactions are admissible as a statement of a co-conspirator. Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978). Admission of the statement of a co-conspirator requires a finding by the trial court that there was an independent prima facie showing of a conspiracy. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). The sufficiency of evidence of a conspiracy is decided by the trial court. Id. at 465, 839 S.W.2d at 176. Appellant did not argue at trial, nor does she argue on appeal, that there was insufficient evidence of a conspiracy; rather, she argues only that the statements were hearsay. Thus, the trial court ruled correctly.

The sentence in this case is life imprisonment without parole, and in accordance with Ark. Sup. Ct. R. 4-3(h), we are required to examine the entire transcript to determine whether there were other rulings adverse to appellant that constitute reversible error. An examination of the record has been made, and we have determined that there were no rulings adverse to appellant that constituted prejudicial error.

Affirmed.


author: Tom Glaze, Justice.

text:
    Ivan Floyd PIPKIN v. STATE of Arkansas
    CR 94-515
    905 S.W.2d 827
    Supreme Court of Arkansas
    Opinion delivered September 11, 1995

      Al Schay, for appellant.

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

On September 27, 1991, appellant Ivan Pipkin was charged with possession of marijuana with intent to deliver. Sometime in 1992, Pipkin’s attorney entered into plea negotiations. The deputy prosecuting attorney wanted a felony plea, which would include a fine and three-year probationary period, but if that was not legally permissible, the prosecutor stated that he would reduce the charge to a misdemeanor and would agree to imposition of a fine and a one-year suspended sentence.

On June 29, 1992, Pipkin filed a motion for declaratory judgment, asking the trial court to rule that the law, Ark. Code Ann. § 5-4-104 (Supp. 1991), did not prohibit Pipkin from being placed on probation for the felony marijuana offense with which he was charged. The trial court subsequently ruled it could not authorize probation if Pipkin pled to the felony charge. Meanwhile, a new prosecutor took office, and he subsequently refused to accept any of the prior negotiations that had taken place between Pipkin and the previous prosecutor. It is undisputed that no written agreement had been signed or filed by Pipkin and the prior prosecutor or his deputy. Nonetheless, on August 16, 1993, Pip-kin filed a motion for specific performance of his purported oral plea agreement with the predecessor prosecutor. Relying on Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988), the trial court denied Pipkin’s motion. On August 18, 1993, Pipkin, by jury trial, was found guilty of possession with intent to deliver a controlled substance and was sentenced to four years imprisonment and a $5,000.00 fine.

In this appeal, Pipkin’s sole point for reversal is that his trial counsel failed to take prompt or timely advantage of Pip-kin’s earlier plea agreement with the predecessor-prosecuting attorney. In failing to do so, Pipkin, citing Strickland v. Washington, 466 U.S. 668 (1984), claims his trial counsel was ineffective and had failed to function as the “counsel” guaranteed by the Sixth Amendment. This issue, however, was never raised below. It is well settled that ineffective assistance of counsel may not be raised on direct appeal unless the issue has been considered by the trial court, e.g., on a motion for new trial. Sumlin v. State, 319 Ark. 312, 891 S.W.2d 375 (1995). Because Pipkin failed to preserve the ineffective assistance of counsel issue below, we are obliged to affirm.


text:
    Stephen HENRY v. STATE of Arkansas
    CR 95-770
    905 S.W.2d 69
    Supreme Court of Arkansas
    Opinion delivered September 11, 1995

      J. Slocum Picked, for appellant.
    No response.
   Per Curiam.

The appellant, Stephen Henry, has filed a motion for rule on the clerk. As appellant filed his notice of appeal one day prior to the entry of judgment, it was of no effect under our rules. Brewer v. State, 321 Ark. 220, 901 S.W.2d 11 (1995); Ark. R. App. P. 4.

We treat this motion as one for belated appeal and grant the motion. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Eric WEST v. STATE of Arkansas
    CR 95-786
    905 S.W.2d 69
    Supreme Court of Arkansas
    Opinion delivered September 11, 1995

      Jeffrey H. Kearney, for appellant.
    No response.
   Per Curiam.

Eric West, by his attorney, Jeffery H. Kearney, has filed a motion for a rule on the clerk. His attorney admits by motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is, therefore, granted.

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


text:
    Donald E. ZUCCO v. STATE of Arkansas
    CR 94-46
    905 S.W.2d 69
    Supreme Court of Arkansas
    Opinion delivered September 11, 1995

      Michael Knollmeyer, for appellant.
    No response.
   Per Curiam.

Donald E. Zueco, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Michael Knollmeyer, admits in his motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Bradley D. Jesson, Chief Justice.

text:
    Larry Otis KANIG v. STATE of Arkansas
    CR 95-8
    905 S.W.2d 847
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      Jeffrey A. Weber, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant, Larry Kanig, was convicted of possession of a firearm by a felon in violation of Ark. Code Ann. § 5-73-103 (Repl. 1993). He was sentenced as a habitual offender to fifteen years’ imprisonment and fined $2500.00. Kanig did not file a motion for new trial below; rather, he appealed his case to the Arkansas Court of Appeals, which in turn certified the case to this court. Kanig’s sole point on appeal is that he received ineffective assistance of counsel at trial.

A claim of ineffective assistance of counsel may not be raised as a point of direct appeal unless the issue has been considered by the trial court, as on a motion for new trial. Sumlin v. State, 319 Ark. 312, 891 S.W.2d 375 (1995). The rationale behind this rule is that an evidentiary hearing and finding as to the competency of appellant’s counsel by the trial court better equips this court on review to examine in detail the sufficiency of the representation. Knappenberger v. State. 278 Ark. 382, 647 S.W.2d 417 (1983); Hilliard v. State, 259 Ark. 81., 531 S.W.2d 643 (1976). While Kanig urges us to overrule our decision in Sumlin v. State, supra, we decline the invitation to do so.

Affirmed.


text:
    VINSON ELECTRIC SUPPLY, INC. v. Carl POTEETE
    95-52
    905 S.W.2d 831
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      Peel Law Firm, P.A., for appellant.

      Edmund M. Massey, P.A., by: Edmund M. Massey, for appellee.
   Robert H. Dudley, Justice.

Plaintiff Vinson Electric Supply Company obtained judgment against Johnny Carolina, David Carolina, and J&D Carolina General Contractors, Inc., for $14,471.00 plus interest, attorney’s fees, and costs. The defendants did not pay the judgment, and on August 5, 1993, plaintiff caused the Circuit Clerk of Conway County to issue a writ of execution. The writ commanded the Sheriff of Conway County to “take into your possession from Johnny Carolina, David Carolina, and J&D Carolina General Contractors, Inc., the judgment debtor, all real and personal property.” The Conway County Sheriff received the writ by mail from plaintiff’s attorney on August 16, 1993.

A sheriff is required to make a return on a writ and is to file it with the issuing clerk within sixty days of the date it was issued. Ark. Code Ann. § 16-66-416 (1987). A return on a writ of execution is a short written statement by the officer, either indorsed on the instrument or attached to it, describing his action taken in obedience to the mandate of the writ, or stating the reason he has done nothing. Smith v. Drake, 174 Ark. 715, 297 S.W.2d 817 (1927). A sheriff is liable for the whole amount specified in the writ if he does not make the return on the writ and file it in the clerk’s office on or before the day specified. Ark. Code Ann. §§ 16-65-202(b)(l), 16-66-118(a)(3) (1987).

On September 30, 1993, or fifty-five days after issuance of the writ and forty-five days after receiving it, the Sheriff mailed the writ back to plaintiff’s attorney without making a return, and in an accompanying letter, advised the attorney that the writ was not complete since it did not list a “specific piece of property to be executed upon” and the information was required by law “before levy can be made.” Plaintiff’s attorney did not further describe the property to be executed upon nor did he return the writ to the Sheriff. The Sheriff did not file the writ with the Circuit Clerk.

On October 21, 1993, or immediately after the sixty days passed, plaintiff brought this action for judgment pursuant to Ark. Code Ann. § 16-65-202. Both parties moved for summary judgment, and the trial court, without giving a reason, granted summary judgment in favor of the Sheriff.

The Sheriff contended below that he was excused from liability as provided by statute because the plaintiff’s attorney interfered with his ability to perform his duties. His supporting affidavit stated that plaintiff’s attorney held the original writ of execution, thereby keeping him from making the return and filing it. As additional grounds for summary judgment, the Sheriff argued that the writ of execution did not have a description of specific property as required by statute; he was immune from liability under the general immunity statute, Ark. Code Ann. § 21-9-301; and he was not liable because he had acted with due care in performance of his duties as required by Ark. Code Ann. § 16-66-119. Plaintiff appeals and argues that the summary judgment was inappropriate on all of the grounds advanced by the Sheriff. We affirm the grant of summary judgment on the ground that plaintiff’s attorney interfered with the Sheriff timely making the return.

Summary judgment is appropriate if the record before the trial court shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Tullock v. Eck, 311 Ark. 564, 567; 845 S.W.2d 517, 519 (1993); ARCP Rule 56(c). Both parties apprised the trial court that there were no issues of material fact. Consequently, the trial court applied the law to the facts.

In support of his motion for summary judgment, the Sheriff attached his affidavit stating that he returned the original writ to plaintiff’s attorney to make the property description more specific and that plaintiff’s attorney never returned the original writ, and that “his holding the original Writ of Execution prevented me from returning same as required by law.” (Emphasis added). The Sheriff argued that under these facts and our interpretation of the statutes, he was excused from liability.

On appeal, in advancing this assignment of error, plaintiff contends that the trial court erred in granting summary judgment because a sheriff cannot escape liability under the applicable statutes unless the judgment creditor does some affirmative act or intentionally interferes with the officer. He contends the facts show that he neither acted affirmatively nor intentionally interfered with the Sheriff.

In Southern Credit Corp. v. Atkinson, 255 Ark. 615, 502 S.W.2d 497 (1973), we observed that many of our early cases strictly enforced the statutes against the officer. See Jett v. Shinn, 47 Ark. 373, 1 S.W. 693 (1885); Herr & Co. v. Atkinson, 40 Ark. 377 (1882). However, by the turn of the century we began to abandon the original hard line so that a judgment creditor could not prevent an officer from completing his duty and then take advantage of it. Bickham v. Kosminsky, 74 Ark. 413, 86 S.W.292 (1905). In Wilkerson v. Mobley. 152 Ark. 124, 237 S.W. 726 (1922), we wrote:

The statute in question is highly penal, and a party invoking it must bring himself within both the letter and spirit of it. Therefore, he can do nothing which directly or indirectly contributes to the omission of the duty complained of and still hold the sheriff answerable under the statute.

Id. at 127, 237 S.W.2d at 727 (emphasis added).

In Hamilton v. Pan American Southern Corp., 238 Ark. 38, 378 S.W.2d 652 (1964) we said:

In dealing with a statute of this kind it is well established by our decisions that it “must be strictly construed in favor of those upon whom the burden is sought to be imposed.”

Id. at 42, 378 S.W.2d at 654 (quoting State v. International Harvester Co., 79 Ark. 517, 96 S.W. 119 (1906)) (emphasis added).

In summary, between 1882 and 1964, our interpretation of the statutes has changed from one of strict enforcement against the officer to one providing that a judgment creditor cannot benefit from any direct or indirect act that contributes to the officer’s omission to perform his duty. In conformity, we decided a case in 1973 that gives guidance for the case at bar. In that case, Southern Credit Corp. v. Atkinson, a sheriff made the return on the writ but mailed it to the judgment creditor’s attorney rather than filing it with the clerk. Southern Credit Corp., 255 Ark. at 616, 502 S.W.2d at 499. The judgment creditor moved for a summary judgment just as in the case at bar. Id. at 615, 502 S.W.2d at 498. The trial court denied the motion by the judgment creditor just as in this case. Id. The case went to trial. The judgment creditor moved for a directed verdict. The motion was denied, and the jury returned a verdict in favor of the Sheriff. We affirmed and in doing so, we wrote:

[H]e mailed it to the attorney because he received it from the attorney (this fact is of considerable significance to us). . . . [Wjhen the process was sent to the sheriff, not by the clerk, but by the attorney, the latter may have contributed, indirectly at least, to the sheriff’s returning the execution to the attorney.

Id. at 619, 502 S.W.2d at 500.

In the case at bar, the judgment creditor’s attorney mailed the original writ to the Sheriff and he mailed it back to the attorney. In addition, the Sheriff, by cover letter, asked the plaintiff’s attorney to make a specific listing of property. The plaintiff’s attorney never advised the Sheriff of any specific property and kept the writ past the deadline for filing with the clerk.

The case of Wilkerson v. Mobley is also in point. In that case, the judgment creditor instructed the Sheriff to give the debtor additional time in which to pay. Wilkerson, 152 Ark. at 126, 237 S.W. at 727. The judgment creditor then sued the Sheriff for not returning the first execution after the Sheriff failed to carry out an agreement to have another execution issued later. Id. at 128, 237 S.W. at 727. The creditor contended that the only conduct on his part that could excuse the Sheriff for not returning the first execution was some type of action that was equivalent to a waiver. Id. at 127. We rejected such a strict application of the statutes and affirmed the grant of summary judgment, stating: “Where the failure of the sheriff to make the return is caused by the plaintiff himself, he ought not to be permitted to obtain any advantage by it.” Id.

In the case at bar, plaintiff’s attorney mailed the writ to the Sheriff and the Sheriff returned the writ to the attorney by mail and asked that the property to be executed upon be specified. The attorney did not respond and, in addition, physically retained the writ past the deadline. Thus, the trial court correctly construed the statutes in accordance with our cases, and we affirm the grant of summary judgment.

At the oral argument of this case in this court, plaintiff contended there is a dispute of material fact and consequently the case should be reversed and remanded. However, plaintiff’s motion for summary judgment in the trial court was supported only by the court proceedings showing the writ of execution was never endorsed or returned. Plaintiff made no argument to the trial court that there was any material dispute of fact. In fact, plaintiff’s counsel told the trial court there was no dispute of fact. On appeal, for the first time, plaintiff contends that he initially mailed the Sheriff only a copy of the writ; that the Sheriff returned the copy to him; that the original writ was at all times on file in the Circuit Clerk’s office, which is only a few feet from the Sheriff’s office; and, consequently, all the Sheriff had to do to fulfill his obligation was to walk a few feet and make an endorsement on the original writ. A party cannot state to the trial court that there is no material fact in dispute, and then, on appeal, successfully contend that summary judgment must be reversed because there is a dispute of fact. There are a number of reasons our law so provides, and one of them is that, absent unusual circumstances that are not likely to ever be present in a summary judgment proceeding, we only reverse because of some erroneous ruling by the trial court. Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995). Plaintiff cannot complain that the trial court erred in accepting his counsel’s statement.

Since we affirm the grant of summary judgment on the foregoing point of appeal, it is not necessary that we decide any of the other points advanced by plaintiff. However, we note, for the benefit of the General Assembly, that one of the other points involves the construction of Ark. Code Ann. § 16-66-104 (Supp. 1993), and whether a writ of execution must specify the property upon which the execution is to be made. Briefly, the statute provides that the writ “may” be worded as set out in the statute and that the prescribed form may be altered. Id. § 16-66-104(a)-(b). It also provides for a “description of specific property.” Id. § 16-66-104(a). The older companion statute providing for an abstract of executions, Ark. Code Ann. § 16-66-115, does not require a description of specific property, and the older “time of lien” statute, § 16-66-112, does not require a description of specific property before the lien attaches. Competing public policy interests are at stake. Thus, the General Assembly may wish to amend the current statute to remove any ambiguity about the validity of a writ of execution and subsequent lien if the property is not specified in the writ.

Affirmed.

       The creditor’s argument is set out in full in the Arkansas Reports but is not recorded in the Southwest Reporter.


author: David Newbern, Justice.

text:
    Phillip CHENOWITH v. STATE of Arkansas
    CR 95-124
    905 S.W.2d 838
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      Laws & Murdoch, P.A., for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Four women accused Phillip Chenowith of various offenses against them including rape, kidnapping, aggravated assault, and theft. An eight-count felony information was brought against Mr. Chenowith. A jury found him guilty of six counts, kidnapping and raping one victim (Victim 1), kidnapping and raping a second victim (Victim 2), as well as aggravated robbery of and theft of property from Victim 2. The Court pronounced sentences of 40 years imprisonment for kidnapping Victim 1, 60 years for kidnapping Victim 2, life imprisonment for the rape of Victim 1, life imprisonment for the rape of Victim 2, 40 years for aggravated robbery of Victim 2, and a fine of $1000 for theft from Victim 2.

In his statement of the case, Mr. Chenowith purports to appeal from all these convictions. The Judgment and Commitment Order entered by the Circuit Court, however, shows only convictions and sentences of 40 years and life imprisonment with respect to the kidnapping and rape of Victim 1 which occurred on March 15, 1993, and the sentence of 60 years imprisonment for the kidnapping of Victim 2 which occurred on March 30, 1993. We thus treat the appeal as being from those convictions and sentences only.

Mr. Chenowith argues his motion for directed verdict should have been granted because the evidence showed Victim 1 and Victim 2 were prostitutes who willingly accompanied Mr. Chenowith and willingly engaged in sexual acts with him and his co-defendant Mr. Harder. Mr. Chenowith has not abstracted the terms of his motion for directed verdict, nor has he cited any authority or made any convincing argument on this point. We would not address this point of appeal but for our Rule 4-3(h) which requires that we examine the record of trial in life imprisonment cases and review all errors prejudicial to the appellant. The record has been reviewed in accordance with the rule, and perhaps in an overabundance of caution, we have considered the sufficiency of the evidence. We hold the evidence was sufficient to support the convictions.

In another point of appeal, Mr. Chenowith complains that Victim l’s in-court identification of him should have been suppressed as it was tainted by suggestive opportunities the State created for her to identify him prior to the trial. We hold the Court did not err in determining that the in-court identification was sufficiently reliable to be admitted.

1. Sufficiency of the evidence

The definition of rape found in Ark. Code. Ann. § 5-14-103(a)(1) (Repl. 1993) includes the following: “(a) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person: (1) By forcible compulsion. . ..” The definition of kidnapping in Ark. Code. Ann. § 5-ll-102(a)(4) (Repl. 1993) includes the following: “(a) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of: . . . (4) Inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him. . . .”

A motion for a directed verdict is a challenge to the sufficiency of the evidence, and when such a challenge is made in a criminal case, we review the evidence in the light most favorable to the State, considering only that evidence which tends to support the verdict, and if there is any substantial evidence supporting the conviction, we affirm. Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995). It is also well established that the uncorroborated testimony of a rape victim is substantial evidence to support the verdict. Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995).

Victim l’s testimony was that she was loitering for the purpose of prostitution on Asher Avenue in Little Rock at 4:30 a.m. on March 15, 1993. Two men, one of whom she later identified as Mr. Chenowith, approached her in a white truck. She got into the truck and sat between them. After they drove a short distance, Victim 1 had “bad vibes” and began to feel afraid and suspicious that she had been picked up by the police. When she asked if she was with the police, the driver responded that he was the police and that she was being picked up “for soliciting prostitution.”

Victim 1 testified that the two men began to “read her rights” as they continued driving down Asher Avenue. They stopped at an abandoned warehouse, where the driver began to taunt her and threaten to arrest her for stabbing an undercover detective. At that point, the two men got her out of the vehicle and frisked her, and then led her into the abandoned building. The man who had been the passenger then forced her to engage in sexual intercourse and fellatio with him. After those encounters, the driver came into the abandoned building, threatened to kill her, and forced her to engage in sexual intercourse and fellatio with him.

After the sexual encounters, the driver asked Victim i if she had any money, and when she responded that she did not, he threatened to kill her if she was lying. He then went through all of her pockets. The three reentered the truck, and Mr. Chenowith told Victim 1 to leave her shoes and socks off. He put them in the bed of the truck. They then drove to a remote part of Pulaski County. Victim 1 asked to be released, but the men refused. At one point, as they crossed train tracks, the two men discussed tying her to the tracks so they “could watch the train run over her.” She testified that after making that comment they continued to discuss ways that they could kill her.

The driver stopped the truck on a patch of gravel somewhere in Pulaski County, and at that point, Victim 1 began to beg for her life. The men responded that they were just joking, and they then all sat on the tailgate of the truck while Victim 1 smoked a cigarette given to her by the passenger.

Victim 1 testified that the two men then forced her to run around while they tried to lasso her with a rope. After that, the driver showed her a gun and asked her if she could use it to kill him. He then asked her if she would engage in sexual intercourse with him again, and she testified she agreed because she feared the consequences if she refused.

Victim 1 testified the two men released her in front of a convenience store at Fouche Dam at approximately 7:30 or 8:00 a.m. She reported the incident two days after it happened. She later positively identified Mr. Chenowith from a photo lineup.

Victim 2 testified she was loitering for the purpose of prostitution in the early morning hours of March 30, 1993. She was standing by a public telephone at a convenience store when two men in a white “dually” pickup truck approached her. She said they agreed on a price for fellatio, and then she got into the vehicle. After getting into the truck, Victim 2 began to direct them to her front yard, which she testified was her usual place of business for safety reasons. She stated that, once the driver refused to take her there, she wanted to get out of the truck.

The driver then took his companion and Victim 2 to an old sewing factory. At that point, the passenger pulled her out of the truck and one of the men took $29, cigarettes, condoms, and a lighter from her. Then one of the men threatened to kill her.

Soon afterward, the driver escorted Victim 2 to the side of the building, and while the passenger held a rope around her neck, the driver forced her to perform fellatio on him. Afterward, Victim 2 thought she could escape by offering the men some marijuana. With this promise, she successfully enticed them to take her to an automobile body shop, where she told them she kept the marijuana.

Once they arrived at the body shop, Victim 2 began to search for the marijuana while the men kneeled over her and threatened her with a box cutter. The owner of the body shop opened the garage door. Victim 2 broke free of Mr. Chenowith and his companion and screamed for help. The two men then got back into their truck and left.

The police were called, and Mr. Chenowith and the passenger of the truck were arrested later that night in the area of Asher Avenue. Victim 2 then went to the police station and identified Mr. Chenowith and the other man as her attackers. In addition, she identified the items that they had stolen, as well as the box cutter used to threaten her.

Police Sergeant David Ebinger testified he located Mr. Chenowith’s truck after receiving the call about the incident involving Victim 2. He said the driver of the vehicle was identified as Phillip Chenowith, and the passenger was Mr. Harder. Sergeant Ebinger also testified that a rope and a large amount of cash were seized. Detective Deral Casteel testified that a box cutter and cigarette lighter were also seized.

Both women testified that when the sexual acts occurred they were not consensual but were forced. Both testified that they were taken to places they had not agreed to go. We have been given no reason to hold that the fact that the relationships began as consensual ones obviates the possibility that they turned violent and forced. See Thomas v. State, 311 Ark. 609, 846 S.W.2d 168 (1993). The evidence of Mr. Chenowith’s guilt of rape and kidnapping was substantial, thus the Trial Court did not err in denying the directed verdict motion.

2. Improper identification testimony

In July 1993, Victim 1 was in a holding cell in the Pulaski County Jail awaiting a revocation hearing when Mr. Chenowith was put in the cell next to hers. Victim 1 testified she recognized Mr. Chenowith on that occasion and had a conversation with him. On April 18, 1994, Mr. Chenowith was scheduled for an omnibus hearing in Pulaski County Circuit Court. Victim 1 was scheduled for a revocation hearing on that day as well. As a result, Victim 1 was in the courtroom during Mr. Chenowith’s omnibus hearing.

Prior to trial. Mr. Chenowith moved to suppress Victim 1 ’s in-court identification. He contended her additional opportunities to see him in the Pulaski County Jail and during his omnibus hearing created an impermissibly suggestive identification procedure resulting in an unreliable in-court identification. Although the Trial Court agreed that the two additional opportunities to see Mr. Chenowith were improperly provided by the State, he found the identification was reliable and denied the suppression motion.

A pre-trial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the criminal. Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995).

In Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992), we discussed allegations of suggestive identifications. Even if the identification technique is impermissibly suggestive, it is for the Trial Court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence, and then it is for the jury to decide the weight the identification testimony should be given. We do not reverse a ruling on the admissibility of an identification unless it is clearly erroneous, and we will not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of misidentification. In the Bishop case, we noted the following factors to be examined to determine reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the prior description; (4) the level of certainty; and (5) the time lapse between the crime and confrontation.

Although the additional opportunities that Victim 1 had to view Mr. Chenowith are arguably impermissibly suggestive, it cannot be said that the Trial Court was clearly erroneous when he ruled that the identification testimony was reliable. Victim 1 said her ordeal lasted approximately three to four hours and that she had the opportunity to view Mr. Chenowith under the light of the truck cab and in the daylight. She described Mr. Chenowith to the police as weighing 260 pounds and having thinning brown hair. He weighed 300 pounds but had thick brown hair. Lastly, only two weeks after the incident, and before the encounters at the Pulaski County Jail and at the omnibus hearing, Victim 1 positively identified Mr. Chenowith from a photo “showup.” We cannot say there was error in admitting the in-court identification.

Affirmed.


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    David R. DeGRACIA v. STATE of Arkansas
    CR 94-1414
    906 S.W.2d 278
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      George J. Stone, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, David R. DeGracia, shot and killed Chris Middleton after an argument at the home of Steven and Penny Vanderpool. He was convicted of first degree murder and sentenced to life imprisonment. Mr. DeGracia, Mr. Middleton, and Mr. Middleton’s eleven-year-old daughter Ginger were guests of the Vanderpools at a belated Christmas dinner on December 28, 1993, when the shooting occurred. We need not recite the facts in detail, as no question is raised with respect to the sufficiency of the evidence.

Ginger Middleton, who saw the shooting, was to be a witness. Along with other witnesses, she had been excluded from the courtroom pursuant to Ark. R. Evid. 615. Mr. DeGracia contends the Trial Court erred by permitting her to testify despite evidence that she had been informed of the testimony of preceding witnesses. He also argues that the testimony of a psychologist, Dr. Adam Brazas, was improperly limited so as to prevent Dr. Brazas from testifying whether Mr. DeGracia purposefully killed Mr. Middleton. We affirm the judgment.

1. Rule 615

Rule 615 provides for exclusion of witnesses from a trial at the request of a party. The Rule was invoked. Mr. DeGracia contends, the Trial Court abused his discretion by refusing to suppress the testimony of Ginger Middleton, or alternatively, by refusing to admonish the jury to disregard the testimony. He attempted to prove that Ginger Middleton was informed by her grandmother, Dorothy Middleton, of the testimony of Mr. and Mrs. Vanderpool who preceded her as witnesses.

Mr. DeGracia’s objection was overruled. Ginger Middleton testified about the shooting and when asked about whether she had been told by her grandmother of prior testimony, she said her grandmother had only told her to be strong and tell the truth. The objection was raised again and overruled. The Trial Court later heard testimony from two witnesses concerning the objection. Mr. DeGracia’s mother, Luisa DeGracia Hernandez, testified that she heard Ginger’s grandmother, Dorothy Middleton, telling Ginger about the testimony of other witnesses. Ms. Hernandez, however, was unable to give any specific information about what she had heard. Dorothy Middleton testified that she had told Ginger Middleton only to be calm and tell the truth.

There are three methods of enforcement of a Rule 615 exclusion order: (1) citing the witness for contempt; (2) permitting comment on the witness’s noncompliance in order to reflect on his credibility; and (3) refusing to let the witness testify. Swanigan v. State, 316 Ark. 16, 870 S.W.2d 712 (1994); Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987). The Trial Court questioned Ms. Hernandez’s credibility. He made it clear he did not believe her and stated that he knew of no authority requiring him to throw out the testimony of a witness in the circumstances presented. We cannot say his decision was erroneous.

2. Expert testimony

Mr. DeGracia also contends the Trial Court abused his discretion when he refused to allow Dr. Brazas to give his opinion on whether Mr. DeGracia had the purpose to kill when he shot Mr. Middleton. Mr. DeGracia argues the opinion evidence was proper and should have been admitted pursuant to Ark. R. Evid. 704. Rule 704 provides, “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

A similar issue arose in Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). We said expert testimony of a psychologist and that of a psychiatrist could be admitted with respect to the question whether a criminal defendant could conform his conduct to the requirements of the law and the question whether or not he was insane. We held, however, that Rule 704 does not permit expert opinion on whether one had the intent required to be found guilty of murder. The basis of our holding was that Rule 704 requires that expert opinion of the sort that “embraces an ultimate issue” must be “otherwise admissible.” To be otherwise admissible the evidence, according to Ark. R. Evid. 403, must be helpful to the jury and not tend to be confusing. We said in the Stewart case that the testimony in question was potentially misleading and confusing to the jury.

We can find no significant distinction with respect to this issue between the Stewart case and the one now before us, so we cannot hold that the Trial Court abused his discretion in refusing to allow the testimony sought to be presented.

Affirmed.


text:
    Mary Elizabeth CIGAINERO v. STATE of Arkansas
    CR 95-206
    906 S.W.2d 282
    Supreme Court of Arkansas
    Opinion delivered September 18, 1995

      The Law Offices of Damon Young, by: Damon Young, for appellant.

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

This is Mary Elizabeth Cigainero’s second appeal. See Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992). In Cigainero I, Cigainero challenged her first-degree murder conviction in the shooting death of her husband, Christopher, claiming (1) there was insufficient evidence to support the conviction and (2) the trial court erred in failing to grant her a new trial based on juror bias. This court held the evidence at trial was more than substantial in showing Cigainero had planned and committed her husband’s murder. Concerning Cigainero’s second argument in Cigainero I, she had filed a new trial motion after her conviction, asserting newly discovered evidence showed that two of the twelve jurors had failed to disclose on voir dire that they had previously signed a petition. The petition, containing 2,500 signatures, requested that the Miller County Circuit Court call a grand jury to investigate the prosecuting attorney’s failure to “file, charge, and prosecute the Christopher Cigainero homicide and many other major crimes in Miller County.” While the trial court agreed that Cigainero’s motion was timely and based upon newly discovered evidence, it denied her a new trial. On appeal, this court affirmed the trial court, but did so on the grounds that Cigainero’s new trial motion had been untimely filed. Id., 310 Ark. at 507-508, 838 S.W.2d at 363-364.

After the Cigainero I decision, Cigainero petitioned for post-conviction relief under Ark. R. Crim. R 37, and essentially alleged the same juror bias allegations previously alleged in her new trial motion in Cigainero I. Citing Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981), the state below argued that Cigainero’s Rule 37 petition raised no new issues from those previously decided on direct appeal in Cigainero I, and therefore, her petition should be dismissed. The trial court apparently agreed with the state’s argument, but did not state its reasons when dismissing Cigainero’s petition.

The Chisum decision established that Rule 37 created a method for determining whether the accused’s rights with respect to constitutional or statutory rights had been violated or whether the sentence was otherwise subject to collateral attack. 274 Ark. at 333, 625 S.W.2d at 449. The court explained that there was no reason for this court to create machinery for a direct attack upon judgments in criminal cases, because that remedy had been adequately supplied by statute for a century or more. It further concluded that Rule 37 provides a remedy when the sentence is vulnerable on constitutional grounds or is otherwise subject to collateral attack, Id. at Ark. 334, S.W.2d 449, and stated that a motion asking the trial court to grant a new trial for newly discovered evidence is plainly a direct effort to have the judgment vacated, not a collateral attack. See Ark. Code Ann. § 16-89-130(c)(6) (1987) (the trial court in which a trial is had upon an issue of fact may grant a new trial when a verdict is rendered against the defendant by which his substantial rights have been prejudiced, upon his motion where the defendant has discovered important evidence in his favor since the verdict). In sum, the court in Chisum held that a motion for a new trial based upon newly discovered evidence is not a proper basis for relief under Arkansas’s postconviction rule.

In the present case, Cigainero concedes her new trial motion below was based upon newly discovered evidence, claiming she only learned after her trial commenced that two of her jury members had previously signed the petition asking a grand jury be called to investigate the Christopher Cigainero homicide. While she concedes the Chisum holding appears to preclude new trial motions based upon newly discovered evidence, Cigainero argues Rule 37 relief is still available since the juror misconduct present in her case violated her constitutional right to a fair and impartial jury. See Ark. Const, art. 2, § 10. She also suggests that, in order for her counsel to exercise his valid judgment in the use of peremptory challenges in obtaining an impartial jury, the answers to questions posed to prospective jurors must be truthful and accurate. Because we conclude such alleged juror misconduct is not a proper subject for Rule 37 proceedings, we need not resolve in this appeal whether the two jurors challenged here answered Cigainero’s questions on voir dire honestly or knowingly failed to respond. See Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989).

This court has held that Rule 37 does not provide a means to challenge the constitutionality of a judgment where the issue could have been raised in the trial court. Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993). Like it does for newly discovered evidence, § 16-89-130 also provides a defendant a new trial motion remedy where, from the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial. See § 16-89-130(c)(7).

Again, like the newly discovered evidence point previously discussed, Cigainero’s remedy was to attack directly her verdict by requesting a new trial based upon juror misconduct. Moreover, her motion was required to show the exercise of diligence. Chisum, 274 Ark. at 334, 625 S.W.2d at 449. Cigainero failed to do so.

Cigainero points out that the petition, which sought a grand jury investigation of the Christopher Cigainero homicide and other major crimes at sometime prior to her trial, had been filed in a miscellaneous drawer in the circuit clerk’s office. Because the petition had been filed away, she claims that she was unaware of the petition, at least, until her cross-examination of a state witness at trial. Nonetheless, we find nothing in the abstract of record that reflects why Cigainero was unable to obtain or review that petition for names and signatures once its existence was known. Once discovered, a timely new trial motion based on juror misconduct could have been filed before or shortly after Cigainero’s conviction.

In conclusion, this court has consistently stated that a constitutional violation is not in itself enough to trigger application of Rule 37. Cotton v. State, 293 Ark. 338, 738 S.W.2d 90 (1987). Nor is Rule 37 intended to provide a review of mere error in the conduct of the trial or to serve as a substitute for appeal. Id. Here, because Cigainero fails to present proper grounds for postconviction relief, we affirm the trial court’s decision denying Cigainero’s Rule 37 motion.

      This constitutional provision in relevant part provides that, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed.