author: Annabelle Clinton Imber, Justice.

text:
    Ronald R. DOUGAN v. STATE of Arkansas
    CR 97-189
    957 S.W.2d 182
    Supreme Court of Arkansas
    Opinion delivered December 18, 1997

      S. Kyle Hunter, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

A jury sentenced Ronald Dougan to forty years’ imprisonment for rape. Dougan raises four arguments for reversal. Finding no merit to these arguments, we affirm Dougan’s conviction.

Ronald Dougan was charged by information with raping his sixteen-year-old stepdaughter on February 20, 1994. At trial, the victim testified that Dougan sexually violated her on five occasions prior to February 20, 1994. According to the victim, Dougan touched her in a sexually explicit manner once when she was six years old, and twice when she was eleven. The victim claimed that in August of 1991, when she was twelve years old, Dougan had sexual intercourse with her. The victim reported the crime to the police, and carnal abuse charges were filed against Dougan. According to the victim, the charges were dropped because her mother forced her to sign a statement declaring that the rape never occurred. Dougan had sexual intercourse with the victim.again when she was fourteen years old.

The victim testified that on February 20, 1994, she and her two siblings were sleeping at Dougan’s home. The victim claimed that early that morning Dougan came into her room and forced her to have sexual intercourse. The next morning, the victim’s aunt, Mary Ann Hemrick, picked-up the children and brought them to her home. A few days later, Dougan called the victim and told her that her five-year-old sister was going to live with him. In response, the victim became hysterical and started crying. The victim then told her aunt that Dougan had raped her, and that she feared he would do the same to her sister. Mary Ann Hemrick took the victim to a therapist who reported the rape to the Department of Human Services (“DHS”). DHS investigated the matter, and the incident was eventually reported to the police.

Dougan testified in his own defense, and denied having any sexual contact with the victim. Dougan explained that the victim fabricated the August 1991 incident to get attention, and that she lied about the February 1994 incident so that her five-year-old sister could live with her and her aunt.

Jayme Dougan, Ronald Dougan’s fourteen-year-old son, testified at trial on behalf of the defense. Jayme testified that he could not sleep the night of February 20, 1994. Jayme claimed that he saw his father sleeping on the couch when he went to the kitchen several times that night. Finally, Jayme testified that he would have seen his father pass his bedroom in order to get to the victim’s bedroom.

Based on this evidence, the jury found Dougan guilty of raping the victim on February 20, 1994, and sentenced him to forty years’ imprisonment. On appeal, Dougan does not challenge the sufficiency of the evidence to support his conviction. Instead, Dougan asserts that he was denied effective assistance of counsel, that the court erred when it allowed the State to introduce evidence of his prior sexual contact with the victim, and that the court erred when it allowed a witness to read from a DHS report. Because we find no merit in Dougan’s arguments, we affirm his conviction.

I. Ineffective Assistance of Counsel

For his first argument on appeal, Dougan asserts that he was deprived of effective assistance of counsel during jury selection because his attorney did not adequately poll the potential jurors and failed to exercise a single peremptory strike. In order for a defendant to argue ineffective assistance of counsel on direct appeal, he must first have presented the claim to the lower court either during the trial or in a motion for new trial. Chavis v. State, 328 Ark. 251, 942 S.W.2d 853 (1997); Smith v. State, 328 Ark. 249, 943 S.W.2d 234 (1997); Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997). Dougan failed to pursue either of these options, and accordingly we are precluded from addressing this argument on direct appeal.

II. Previous Sexual Misconduct

Next, Dougan claims that the trial court committed reversible error when it allowed the State to introduce evidence of five other instances of alleged sexual misconduct because the State only charged him with raping the victim on February 20, 1994. Specifically, Dougan contends that the testimony was inadmissible pursuant to Ark. R. Evid. 404(b) as character evidence that had no relevance except to show his propensity to commit the crime charged, and that the prejudicial effect of the evidence outweighed its probative value under Ark. R. Evid. 403.

This argument has no merit because we have consistently recognized the “pedophile exception” which states that evidence of similar sexual acts with the same child or other children in the same household is admissible to show a “proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship” or to “prove the depraved sexual instinct of the accused.” Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996); Mosely v. State, 325 Ark. 469, 929 S.W.2d 693 (1996); Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996); Thompson v. State, 322 Ark. 586, 910 S.W.2d 694 (1995). Thus, we conclude that the trial court did not abuse its discretion when it allowed evidence of the five prior instances of sexual misconduct.

III. Disclosure of the DHS Report

Next, Dougan states in passing that his conviction should be reversed because the State failed to disclose the existence of the DHS report, and it did not include a copy of the report in its investigative file. When an appellant does not cite authority or make a convincing argument, and when it is not apparent without further research that the point is well taken, we will affirm. Qualls v. Ferritor, 329 Ark. 235, 947 S.W.2d 10 (1997); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). On appeal, Dougan has failed to cite a single authority or make a convincing argument in support of his allegation. In fact, Dougan only mentioned the alleged nondisclosure in a subheading of his brief. Accordingly, we are unable to address the merits of his contention.

IV. The DHS Report as Hearsay

Finally, Dougan asserts that the trial court committed reversible error when it allowed a witness to read portions of a DHS report about the February 20, 1994, incident. As previously mentioned, Jayme Dougan testified that his father did not enter the victim’s bedroom on the night of the rape. On cross-examination, the State attempted to impeach Jayme by reading portions of a statement he gave to a DHS social worker a few days after the alleged rape, and the following colloquy occurred:

STATE: [Reading from the DHS report] “Stated he saw his dad go to [the victim’s] bedroom.”
JAYME: He just stuck his head in the door.
STATE: “And he heard [the victim] saying, ‘stop, stop.’”
JAYME: No, I didn’t.
STATE: She [the social worker] made that up?
JAYME: I guess she did, ‘cause I didn’t say that.
STATE: “Stated he, his dad, was in [the victim’s] room for about 30 minutes.”
JAYME: No, he wasn’t, either.
STATE: You didn’t say that; she made it up?
JAYME: I guess she made it up, because he didn’t go in there.
STATE: “Stated he knew it was about 30 minutes by watching his clock in his room.”
JAYME: He never did go in there, so I don’t know where they got that from.
STATE: So that’s another lie the Social Worker made up?
JAYME: I guess it is.

Dougan did not object to any of the above questions or testimony.

Thelma Bean, a Protective Services Supervisor for DHS, testified during the State’s case in rebuttal. Bean identified the report made by the DHS social worker who investigated the February 20, 1994 rape. Bean explained that she did not write the report, but as a supervisor it was a regular business practice for her to keep such reports in her office. The State then asked Bean if the report contained a statement regarding whether Jayme saw his father enter the victim’s bedroom. Dougan objected on the basis that the report was hearsay. The State argued that the report fell under the business-record exception to the hearsay rule, and the judge overruled Dougan’s objection. Thelma Bean then read the following statement from the DHS report:

He [Jayme Dougan] stated he saw his dad go into [the victim’s] bedroom, and heard [the victim] saying “Stop, stop.” Stated he, his dad, was in [the victim’s] bedroom for about 30 minutes. Stated he knew it was about 30 minutes from watching his clock in his room.

On appeal, Dougan argues that the trial court committed reversible error when it allowed Thelma Bean to read this portion of the DHS report because it was hearsay that did not fall under the business-record exception. We do not need to address the merits of this argument because we have said on numerous occasions that when hearsay is erroneously admitted, we will not reverse if it is cumulative of other evidence admitted without objection. Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996); Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996); Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995). Of particular importance are Zufari v. Architecture Plus, 323 Ark. 411, 914 S.W.2d 756 (1996), and Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992), where we refused to consider whether a statement fell under the business-record exception to the hearsay rule, Ark. R. Evid. 803(6), because the same or similar evidence was admitted at trial without objection.

In this case, the relevant portions of the DHS report were already admitted without objection during the impeachment of Jayme Dougan. Hence, as in Zufari and Hooper, we need not address whether Thelma Bean’s testimony fell under the business-record exception because the same evidence was already admitted at trial without objection.

Affirmed.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    Jimmy SEEK v. STATE of Arkansas
    CR 97-472
    957 S.W.2d 709
    Supreme Court of Arkansas
    Opinion delivered December 18, 1997

      Stuart Vess, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Jimmy Seek, appellant, pleaded guilty to charges of residential burglary, kidnapping, and sexual abuse, for which he received a fifteen-year sentence to the Arkansas Department of Correction. After the trial court entered its judgment and commitment order, Seek filed a motion to withdraw his guilty pleas pursuant to Ark R. Crim. P. 26.1. He alleged that the pleas were not voluntarily and intelligently made because Lewis Littlepage, his attorney, misled him as to the punishment he would receive. After a hearing, the trial court denied Seek’s motion on its merits, finding that he had voluntarily entered his pleas after being fully informed. We agree and affirm.

On appeal, Seek maintains that Littlepage advised him that he would receive a prison term, consistent with the sentencing guidelines, of about twenty-four months. He contends that, but for that advice, he would not have entered guilty pleas. Seek concedes that the court informed him prior to the guilty pleas that he was facing possible sentence of five to twenty years for the burglary and kidnapping offenses, and three to ten years for the sexual abuse offense. He argues, however, that Littlepage failed to inform him that the sentencing guidelines were not mandatory and could be ignored by the court.

Seek was charged with the offenses after he confessed to the police. He described entering his neighbor’s house, wearing a ski mask, at midnight through an unlocked door. Upon finding the victim in bed, he tied her hands behind her back and then sexually molested her. He left forty-five minutes later. During the confession, Seek consented to a police search of his home and car. The police subsequently found a rope in Seek’s car that matched the description of the rope used in the crime.

Jurisdiction is proper in the supreme court when an appeal is based on a petition for postconviction relief under Ark. R. Crim. P. 37. Ark. R. S. Ct. l-2(a)(4). We have so held even after the original petition was brought under Rule 26.1 of the Ark. R. Crim. P., and entitled “Motion to Withdraw a Guilty Plea.” McCuen v. State, 328 Ark. 46, 941 S.W.2d 397 (1997); Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997). A motion to withdraw a guilty plea, under Rule 26.1, is untimely when filed after sentencing and entry of judgment. McCuen, 328 Ark. at 55, 941 S.W.2d at 402. When these petitions come to us on appeal, we treat them as motions for postconviction relief under Rule 37. Id. at 56, 941 S.W.2d at 402; Johninson, 330 Ark. at 385, 953 S.W.2d at 884. In the case before us, we therefore review the petition as a motion for postconviction relief, even though it was brought as a motion to withdraw a guilty plea.

We do not reverse a trial court’s denial of postconviction relief unless the ruling was clearly erroneous. Rowe v. State, 318 Ark. 25, 26-27, 883 S.W.2d 804, 805 (1994). When a guilty plea is challenged, the issue is whether the trial court erred in finding that the plea was intelligently and voluntarily entered with the advice of competent counsel. McCuen, 328 Ark. at 58, 941 S.W.2d at 403. To determine the competency of counsel, we apply the standard adopted in Strickland v. Washington, 466 U.S. 668 (1984), in which the petitioner must prove that “counsel’s performance fell below an objective standard of reasonableness and that, but for counsel’s errors, there is a reasonable probability that the outcome would have been different.” McCuen, 328 Ark. at 58, 941 S.W.2d at 403. The petitioner carries the burden of overcoming the presumption that counsel is competent. Id.

Given the facts of this case, we cannot say the trial court committed clear error when it found that Seek did not meet this burden. Littlepage testified that, in addition to advising Seek that he had a good chance to receive the prison term indicated in the sentencing guidelines, he also informed Seek that the court did not have to follow them. By contrast, Seek put on no evidence to support his claim. Seek did not testify, nor did he offer witnesses to testify on his behalf.

Even if Littlepage was acting unreasonably in advising Seek, Seek did not offer proof that the outcome would have been different if he had not pleaded guilty and the case had gone to trial. Evidence in the record suggests otherwise. In confessing to the crime, Seek gave a detañed description of the events that transpired during the commission of the crimes. The rope that the police found in Seek’s truck was also incriminating. We can appreciate that Seek was unhappy about the sentence he received, however, he is not entitled to have his pleas withdrawn, after the sentence has been announced, solely because he received a sentence greater than he expected. Johninson, 330 Ark. at 390, 953 S.W.2d at 887 (quoting Stobaugh v. State, 298 Ark. 577, 580, 769 S.W.2d 26, 28 (1989)).

Neither can we find clear error in the trial court’s conclusion that Seek was fully informed about the entire range of possible punishment. The evidence in the record before us shows that, in signing the plea statement, Seek acknowledged that he read and understood the possible sentences for the charged offenses, that he discussed the case fully with his attorney and was satisfied with his attorney’s services, and that he understood that the judge was not required to follow the sentencing guidelines discussed by Seek and his attorney. The record also shows that, during the plea proceeding, the court reviewed with Seek the possible sentences he could receive for each of the offenses. At that time, Seek stated that he was not induced to plead guilty by any promises made to him and that he was pleading guilty because he was guilty. Based on this evidence, we affirm the trial court’s ruling that Seek’s pleas were intelligently and voluntarily entered with the advice of competent counsel.

Affirmed.


author: Ray Thornton, Justice. Robert L. Brown, Justice,

text:
    William T. STEWARD and Jeannine G. Steward v. Jerry Eugene McDONALD and Professional Services Industries, Inc.
    97-137
    958 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered December 18, 1997

      Warner, Smith & Harris, PLC, by: Joel D. Johnson, for appellants.

      Eddie H. Walker, Jr., and Stephen M. Shamm, for appellee Jerry Eugene McDonald.
   Ray Thornton, Justice.

The issue in this case is whether a landlord owes a duty of care to his tenant’s employees. Appellants William T. Steward and Jeannine G. Steward (“Landlords”) leased a building to appellee Professional Services Industries, Inc. (PSI). PSI employed appellee Jerry Eugene McDonald, who was injured when a riser broke while he was carrying boxes weighing approximately 120 pounds up a flight of stairs in the leased building. The stairway did not have a handrail at the time the injury occurred. After the accident, McDonald received benefits under the Arkansas Workers’ Compensation Act.

McDonald filed a complaint against the Landlords, alleging that they had failed to maintain, repair, and construct the stairway in violation of our general unsafe-place-to-work statute, Ark. Code Ann. § 11-2-117 (1987), and that the Landlords were negligent in failing to provide guardrails, toeboards, and handrails as required by OSHA. McDonald later amended his complaint to allege violations of the Arkansas Department of Labor Basic Safety Manual. The Landlords then filed a third-party complaint against PSI, as the tenant, based on the principle of implied indemnification. The Landlords and PSI both filed motions for summary judgment. The trial court granted summary judgment in favor of PSI; however, it denied the Landlords’ motion, and McDonald’s claim against them proceeded to trial. The jury returned a general verdict in favor of the Landlords.

McDonald then filed a motion for new trial, on the basis that the verdict was “clearly contrary to the preponderance of the evidence or . . . contrary to the law.” Ark. R. Civ. P. 59(a)(6). The trial court premised its order granting a new trial on its interpretation of our general unsafe-place-to-wbrk statute, Ark. Code Ann. § 11-2-117 (Repl. 1996), which states in pertinent part:

Every employer and every owner of a place of employment, place of public assembly, or public budding, now or hereafter _ constructed, shall construct, repair, and maintain it so as to render it safe.

Ark. Code Ann. § 11-2-117(b) (emphasis added). The trial court found that the statute applied to the Landlords and created a duty to provide a safe place to work. It further found that the jury’s failure to find the Landlords negligent on that basis was clearly against a preponderance of the evidence.

In construing the statute, we have determined that the general assembly did not intend for the phrase “every owner of a place of employment” to expand or extend a landlord’s duty to provide a safe place to work for his tenant’s employees. We have not previously had occasion to interpret the meaning of this phrase in the context of this statute.

In his complaint, McDonald alleged that this statute imposes a duty on property owners, who lease a place of employment, to construct, repair, and maintain the property in a manner that renders it reasonably safe. McDonald based this argument solely on the statutory language. The trial court’s order granting a new trial indicates that the court likewise found “that the jury finding that the Defendants were not negligent in failing to provide a safe place to work as required by Ark. Code Ann. § 11-2-117 is clearly against the preponderance of the evidence.”

McDonald also argued that the lease agreement, which contained language stating that the Landlords were responsible for major repairs and the tenant for minor repairs, could be interpreted to mean that the Landlords had a contractual duty to repair the stairs. This question was submitted to the jury for determination, and the jury found that the Landlords were not negligent. However, the trial court’s order granting a new trial was not based on any assertion of duty imposed under the terms of the lease agreement, but rather that a duty was imposed by statute and by the safety regulations. Therefore, we confine our discussion to the issues on which the trial court predicated its order in granting a new trial.

We have followed the common-law rule that a lessor owes no duty to the lessee to repair the premises. Majewski v. Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987). However, we have elaborated that a lessor can be held liable where he agrees to undertake the repairs. Id. In Majewski, we followed the majority rule, stating that:

A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a condition of disrepair existing before or arising after the tenant has taken possession if: (1) the landlord, as such, has contracted by a promise in the lease or otherwise to keep the leased property in repair; (2) the disrepair creates an unreasonable risk to persons upon the leased property which the performance of the landlord’s agreement would have prevented; and (3) the landlord fails to exercise reasonable care to perform his contract.

Id. at 362-63, 737 S.W.2d at 651.

Similarly, in Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994), we noted that since 1932, we have adhered to the rule that a landlord is under no legal obligation to a tenant for injuries sustained in common areas, absent a statute or agreement. See also 52 C.J.S. Landlord and Tenant § 417 (1968). A party who gratuitously undertakes a duty can, however, be liable for negligently performing that duty. Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983); see also Restatement (Second) of Torts § 323 (1965). We have recognized that a duty can also arise, in certain circumstances, under the terms of a lease between a landlord and tenant. Bartley v. Sweetser, supra.

It is well settled that statutes will not be taken in derogation of the common law unless the act shows that such was the intent of the legislature. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); Gray v. Nations, 1 Ark. (1 Pike) 557 (1839). We strictly construe statutes that impose duties or liabilities unknown at common law in favor of those upon whom the burden is sought to be imposed, and nothing will be taken as intended that is not clearly expressed. Hartford Ins. Group v. Carter, 251 Ark. 680, 473 S.W.2d 918 (1971); see also Norman J. Singer, 3 Sutherland Stat. Const. § 61.01, at 171 (5th ed. 1992).

McDonald’s argument would require us to conclude that the legislature intended section 11-2-117 to subject all landowners who lease property to employers of more than five employees to liability for negligence in failing to provide and maintain a safe workplace. If we accept McDonald’s interpretation of section 11-2-117, the resulting rule would clearly be in derogation of the common-law rule regarding a landlord’s duty of care owed to a tenant. Therefore, we must strictly construe the statute in an attempt to give effect to the legislature’s intent.

The legislature enacted almost all of Subchapter 2 of Title 11 through Act 161 of 1937, our Labor Department Act. 1937 Ark. Acts 161 (codified at Ark. Code Ann. §§ 11-2-101 — 121); Horn v. Shirley, 246 Ark. 1134, 441 S.W.2d 468 (1969). The primary function of the Act is clearly expressed in its title:

AN ACT to Create a Department of Labor; to Create the Office of Commissioner of Land and to Define the Duties of the Commissioner as Administrative Head of the Department of Labor; to Provide for the Arbitration and Conciliation of Labor Disputes; to Authorize the Commissioner to Make Investigations and to Collect Statistics for the Purpose of Enforcing the Labor Laws of the State of Arkansas; to Empower the Board to Make Rules Relating to Health and Safety in Places of Employment; to Provide for the Review of Such Rules; to Provide Penalties for the Proper Enforcement of this Act and to Repeal all Laws in Conflict Herewith.

1937 Ark. Acts 161. We gain further insight into the legislature’s purpose from the Act’s Emergency Clause:

It is found and determined by the General Assembly that the present laws relating to labor in this State are not sufficient to meet present conditions; that in order for this State to coordinate its activities concerning labor with Federal Agencies on unemployment and security benefits, it is necessary that a Department of Labor be created with the powers and duties prescribed by this Bill; THEREFORE, an emergency is hereby declared to exist and this Act shall take effect and be in full force and effect from and after its passage and approval.

1937 Ark. Acts 161, § 26. The portion of the Act that is at issue here remains essentially unchanged from its form at inception. § 9(b) (codified at Ark. Code Ann. § ll-2-117(b)).

Clearly, from the foregoing words of the general assembly, we may deduce that section 11-2-117 had its origin in legislation creating the Department of Labor with all its incidental powers and duties, granting the State the authority to enforce the statute with civil or criminal penalties, and establishing standards to be used in assessing whether a violation has occurred. Had the legislature intended a radical change in the law to extend causes of action for negligence based on a landlord’s duty to his tenant, the Act would have expressed such an intention in some plain and unmistakable terms.

Instead, the Act speaks of causes of action brought by the State against employers and owners of places of employment, places of public assembly, or public buildings. The Labor Department Act clearly contemplates bringing a cause of action against an “employer,” which is defined within this subchapter as “including] every person, . . . having control or custody of any . . . place of employment, or of any employee.” Ark. Code Ann. § 11 — 2— 102(1) (emphasis added). Reading section 11-2-117(b) in conjunction with section 11-2-102(1), we cannot ascertain a legislative intent to impose greater liability on an owner of a place of employment than that imposed on an employer. Applying the rules of strict construction, we cannot say that the legislature plainly intended that the responsibility for a safe workplace is greater on an owner of a place of employment than it is on an employer, who may be penalized under the statute for having an unsafe workplace under its “control or custody.”

We hold that, without an assumption of responsibility for repairs, there was no common-law duty under which we may impose liability on the Stewards, as landlords, to provide a safe workplace for the employees of their tenant and that none was created by the statute. We will reverse a trial court’s order granting a motion for a new trial only if there is a manifest abuse of discretion. Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992). A clearly erroneous interpretation of the law or a clearly erroneous application of a law or rule can constitute such manifest abuse of discretion. Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995). We conclude that the trial court misinterpreted section 11-2-117 in its order granting new trial, and that this misinterpretation of the law constitutes a manifest abuse of discretion. Because of our decision, the remaining issues that appellant raises on appeal are rendered moot.

Accordingly, we reverse the trial court’s order granting a new trial and dismiss this appeal.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I write to concur because I believe the majority has given an unduly restrictive construction to Ark. Code Ann. § ll-2-117(b) (Repl. 1996). Section 11-2-117(b) reads:

Every employer and every owner of a place of employment, place of public assembly, or public building, now or hereafter constructed, shall construct, repair, and maintain it so as to render it safe.

Id. (emphasis added). In my judgment, this provision establishes a statutory duty on the part of the Stewards, who own a building used as a workplace, to turn the premises over to PSI in a safe condition. This duty attaches even though the owners are landlords because of the clear reference in the statute to “owner.” Here, the issue of premises safety was submitted to the jury, and the jury found for the Stewards. For that reason, I concur in the result.

The Supreme Court of West Virginia was faced with a similar issue in Pack v. Van Meter, 354 S.E.2d 581 (W.Va. 1986). In that case, Ms. Pack, who was employed by a dress shop that leased space in a building owned by the Van Meters, was injured when she fell down a set of stairs that did not have a handrail, which violated § 21-3-6 of the West Virginia Code. That code provision mandated proper and substantial handrails in all mercantile establishments. Because the statute was silent on whether this duty was owed by the Van Meters, the Supreme Court looked to its safe-workplace statute for guidance:

W.Va.Code, 21-3-1, is the introductory section in the part of our Code relating mainly to the safety and welfare of employees in the workplace and contains this provision with regard to the owner of certain premises: “Every employer and every owner of a place of employment, place of public assembly, or a public building, now or hereafter constructed, shall so construct, repair and maintain the same as to render it reasonably safe.” (Emphasis added). This language clearly imposes a duty on both the employer and the owner of a place of employment, place of public assembly, or a public building to maintain such places in a reasonably safe condition.

Id. at 585.

The West Virginia Supreme Court noted that finding a duty on the part of the Van Meters was necessary; otherwise, the “every owner” language of the safe-workplace statute would be rendered meaningless. Id. at 586.

The Pack case is instructive because of the factual similarities to the present case, and also because both the Arkansas and West Virginia legislatures took action in 1937 to include the “every owner” language in their respective safe-workplace statutes. While I agree that statutes in derogation of the common law must be strictly construed, it is settled law that the intent of the General Assembly must be garnered from the plain meaning of the language used. Masterson v. Stambuck, 321 Ark. 391, 902 S.W.2d 803 (1995); Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576. (1995); Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994); Worthen Nat’l Bank v. McCuen, 317 Ark. 195, 876 S.W.2d 567 (1994). Because it is undisputed that the Stewards were landlords and owners of the building leased by PSI, and because they had an opportunity to cure the structural defect prior to surrendering the property, a duty attached under the plain meaning of § 11-2-117(b).

The question then is whether the trial court was within its discretion in awarding McDonald a new trial on the ground that the jury’s finding that the Stewards did not violate their statutory duty was clearly contrary to the preponderance of the evidence. See Ark. R. Civ. P. 59(a)(6); Young v. Honeycutt, 324 Ark. 120, 919 S.W.2d 216 (1996).

In this case, although the stairs did not comply with Rules 21 and 24 of the Arkansas Department of Labor Basic Safety Manual due to the absence of handrails, these violations are only evidence of negligence and not negligence per se, see Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983), reh’g denied, 279 Ark. 401-A, 653 S.W.2d 128 (1983). In contrast, it was plain and obvious to PSI that the stairs had no handrail when PSI assumed control of the premises, and there was no request by PSI for the Stewards to provide a handrail for the benefit of PSI’s employees. The jury could have determined that both PSI and the Stewards believed the stairs to be in a safe condition.

I conclude that while a duty exists on the part of the Stewards to turn the premises over to PSI in a safe condition, the question of whether the premises were safe was decided in favor of the Stewards, and the verdict was not clearly contrary to the preponderance of the evidence. Accordingly, I would affirm the jury’s decision.


author: Per Curiam.

text:
    Stephen V. HENDERSON v. Sandra K. HENDERSON
    97-699
    955 S.W.2d 911
    Supreme Court of Arkansas
    Opinion delivered December 18, 1997

      Caítís L. Childs, for appellant.

      Helen Rice Grinder, for appellee.
   Per Curiam.

On September 25, 1997, appellee Sandra K. Henderson filed a motion to dismiss appeal, asserting appellant Stephen V. Henderson failed to file a timely record. The Faulkner County Chancery Court had entered its decree on November 25, 1996, and appellant filed a timely notice of appeal on December 26, 1996. While appellant obtained an extension until June 24, 1997 to file his transcript, he failed to do so until June 25, 1997. Accordingly, we dismissed appellant’s appeal from the November 25, 1996 decree because he tendered his transcript late.

Now, appellee contends appellant’s second and third notices of appeal were untimely. On March 12, 1997, appellant filed his second notice of appeal from the November 25, 1996 decree, and on October 23, 1997, he filed a third notice of appeal from the November 25, 1996 decree, but added a January 31, 1997 order, a February 25, 1997 supplemental decree, and an order filed on October 3, 1997. Obviously, the March 12, 1997 notice of appeal was filed outside the time for appealing the trial court’s November 25, 1996 decree, and from what we can glean from the record, his October 23, 1997 notice of appeal was also untimely from all other decrees or orders named except the designated October 3, 1997 order. See Rule 3 of the Appellate Procedure — Criminal. The October 3 order was signed and entered by Judge Gardner regarding contempt and Rule 11 issues.

Based upon this record and appellee’s new motion to dismiss, we dismiss as untimely the appeals from the November 25, 1996 decree, January 31, 1997 order, and February 25, 1997 decree. The appeal from the October 3, 1997 order is timely.


text:
    B.J. McADAMS, Managing Agent for Colonial Ballroom, Inc. v. PULASKI COUNTY CIRCUIT COURT; Honorable Marion A. Humphrey, Honorable Chris Piazza, Honorable John Ward, Honorable John Langston, Honorable Morris W. Thompson, Honorable David B. Bogard, and Honorable John B. Plegge
    97-1467
    956 S.W.2d 869
    Supreme Court of Arkansas
    Opinion delivered December 18, 1997

      Bob McAdams, for petitioner.

      Winston Bryant, Att’y Gen., by: Brian G. Brooks, Asst. Átt’y Gen., for appellee.
   Per Curiam.

Petitioner, B.J. McAdams as “managing agent” for Colonial Ballroom, Inc., petitions this court to issue a writ of mandamus to the Pulaski County Circuit Court and to the individual judges serving on the Pulaski County Circuit Court. Specifically, he asks that we direct the judges and the court to reverse a denial of his motion for a temporary restraining order to prohibit the North Little Rock Police Department from enforcing a curfew on an establishment owned by Colonial Ballroom, Inc.

We note initially that the petition requests this court to direct the judges and the circuit court to do more than perform ministerial acts. The petition asks this court to direct a reversal of a prior decision by using the extraordinary writ of mandamus. Mandamus clearly does not lie for such purposes. See Wilson v. Neal, 329 Ark. 125, 947 S.W.2d 338 (1997); Sanders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995).

We also deny the petition for an additional reason. Based on the style of the case and the signature at the end of the petition, Colonial Ballroom, Inc., is not represented by counsel. Bob McAdams, who is not a licensed attorney, has signed the petition filed in this court. We have held that corporations must be represented by licensed attorneys. See All City Glass & Mirror, Inc. v. McGraw Hill Information Sys. Co., 295 Ark. 520, 750 S.W.2d 395 (1988); Arkansas Bar Assn v. Union Nat’l Bank, 224 Ark. 48, 273 S.W.2d 408 (1954).

In sum, we deny the petition for failure of the corporation to have legal representation as well as for the fact that mandamus does not lie under these circumstances.

Writ denied.


text:
    M.H. v. STATE of Arkansas
    97-1439
    955 S.W.2d 911
    Supreme Court of Arkansas
    Opinion delivered December 19, 1997

      Lewis Littlepage, for appellant.
    No response.
   Per Curiam.

The appellant, M. H., has filed a motion for rule on the clerk. His attorney, Lewis W. Littlepage, admits fault for tendering the record late in his client’s juvenile delinquency case.

We find that such an error, admittedly made by the attorney here, is good cause to grant the motion. See Hansberry v. State, 318 Ark. 757, 887 S.W.2d 308 (1994). A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Anthony SANDERS v. STATE of Arkansas
    CR 97-961
    956 S.W.2d 868
    Supreme Court of Arkansas
    Opinion delivered December 18, 1997

      Jerry Larkoivski, for appellant.
    No response.
   Per Curiam.

In accordance with our mandate, the trial court conducted a hearing to determine whether appellant Anthony Sanders had requested his trial counsel, Mark Jesse, to file an appeal from his conviction. After hearing conflicting testimony on this issue, the trial court found Sanders informed Mr. Jesse to appeal, but that Sanders failed to make arrangements to pay for transcript costs, nor would Sanders execute a truthful affidavit in order to pursue the appeal as an indigent.

Rule 16 of the Appellate Procedure — Criminal provides that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal, unless permitted by the trial court or supreme court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal has been filed, the supreme court shall have exclusive jurisdiction to relieve counsel and appoint new counsel. Id.

Here, defense counsel Mark Jesse has never been relieved as attorney of record. Moreover, if Mr. Jesse believed the appeal had no merit, he was obligated to either obtain permission from the trial court to withdraw before the notice of appeal was filed or file a motion to withdraw in this court after the" notice of appeal was filed. Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986).

The failure to perfect an appeal in a criminal case where the defendant desires an appeal constitutes a denial of effective assistance of counsel and is good cause for granting a belated appeal. Id. Here, Mr. Jesse failed to withdraw or file an appeal, but new counsel, Jerry Larkowski, appears as retained counsel on Sanders’s behalf. Apparently Sanders filed a pro se notice of appeal before retaining Larkowski, who has filed a motion for belated appeal for Sanders. Sanders’s motion for belated appeal shall be granted contingent upon Jesse’s filing a motion to be relieved as counsel in this court with a request to substitute Mr. Larkowski in his stead.


text:
    Linda STREET v. STATE of Arkansas
    CR TEN-97-1
    956 S.W.2d 866
    Supreme Court of Arkansas
    Opinion delivered December 18, 1997
    No response.

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

Appellee, the State of Arkansas, by and through counsel, Winston Bryant, Attorney General, and David R. Raupp, Senior Assistant Attorney General, has filed a motion to dismiss Appellant’s appeal.

On August 30, 1996, Appellant Linda Street conditionally pleaded guilty to two counts of possession of a controlled substance with intent to deliver and one count of possession of drug paraphernalia. Appellant filed a notice of appeal the same date. Appellant was granted a thirty-day extension to lodge her transcript, but she failed to lodge it by its due date on December 28, 1996.

By letter dated January 3, 1997, the clerk of this court advised Appellant’s attorney that a motion for rule on the clerk would be necessary to get the record filed and to proceed with the appeal. Appellant’s attorney has taken no action in the appeal since tendering the transcript late on January 2, 1997.

We find that Appellant’s failure to perfect this appeal in a timely manner is good cause to grant appellee’s motion to dismiss the appeal.

The motion is, therefore, granted.

A. Wayne Davis, attorney for Appellant, is also ordered to appear before this court on the 15th day of January, 1998, at 9:00 a.m. to show cause why he should not be held in contempt of this court for his failure to perfect Appellant Street’s appeal in a timely manner.


author: W.H.“Dub” Arnold, Chief Justice.

text:
    Darrell Wayne SHERIDAN v. STATE of Arkansas
    CR 96-1201
    959 S.W.2d 29
    Supreme Court of Arkansas
    Opinion delivered January 8, 1998

      Arkansas Public Defender Commission, Didi Sailings and Terry Chambers, by: Deborah R. Sailings, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   W.H.“Dub” Arnold, Chief Justice.

The appellant, Darrell Wayne Sheridan, was convicted of capital murder for the premeditated killing of his former girlfriend, Laurie Ann Brown. On direct appeal, we affirmed both his conviction and death sentence. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). Thereafter, the appellant filed a petition for postconviction relief under Ark. R. Crim. P. 37. The circuit court dismissed the petition. Among the appellant’s multiple points on appeal is his contention that the circuit court erred in denying relief because his defense counsel, John Wesley Hall, Jr., had a conflict of interest. Mr. Hall represented the appellant and his brother, Robert Sheridan, both of whom were charged with the capital murder of Ms. Brown. Prior to trial, Robert, under Mr. Hall’s guidance, pled guilty to hindering apprehension and agreed to testify for the State in the appellant’s trial. After the appellant’s conviction, the charges against Robert were dropped. Because we agree with the appellant that an actual conflict of interest existed that adversely affected defense counsel’s performance, we reverse and remand for a new trial.

The victim was found stabbed to death on a road leading to a Saline County cemetery. Prior to her death, she had been a passenger in a vehicle occupied by her boyfriend, Mike Coker, the appellant, his wife, Connie Sheridan, and his brother, Robert. The day after the murder, Robert, who lived with the victim’s sister, was questioned by police and denied knowledge of the killing or of the appellant’s whereabouts. Subsequently, Robert, Connie, and the appellant were each arrested and charged with capital murder. After giving a statement to police implicating the appellant, Connie retained Mr. Hall to represent the appellant. Robert also retained Mr. Hall, who represented both brothers at plea and arraignment. Thereafter, Mr. Hall negotiated a plea agreement with the State for Robert. In exchange for reducing the murder charge to hindering apprehension, Robert agreed to testify against the appellant at trial. Robert pled guilty to the hindering-apprehension charge, and sentencing was postponed until after the appellant’s trial. After trial, the State dropped the charge against Robert.

Robert’s testimony at trial included the following. The night before the murder, he told the appellant that the victim had informed the police that the appellant and Connie were dealing drugs. The next day, the appellant and his wife came to Robert’s house to get directions to the victim’s residence. Robert assumed that the appellant wanted to “scare” the victim. Robert accompanied the appellant and Connie to the victim’s residence, where the Sheridans, the victim, and Mike began discussing the victim’s statements to police. The appellant suggested that they all go to Robert’s house, a “neutral” place, to talk, and the victim agreed to do so. Once in the Sheridan’s vehicle, the appellant instructed Connie, who was driving, to go to the cemetery. Upon arrival at the cemetery, the appellant exited the vehicle. He instructed the victim to get out of the vehicle and stated to the remaining occupants, “Give me ten minutes.” According to Robert, as the victim exited the vehicle, she stated, “Life’s a bitch” or “What the fuck,” indicating to him that she was not scared. The remaining occupants drove off, and, after driving a short distance, Mike, now frightened and concerned, asked to be let out of the vehicle and left to get help.

When Connie and Robert returned to the cemetery, the appellant asked Connie to open the trunk before getting in the car. Robert described his brother’s demeanor as calm and methodical. He further observed that the appellant was not wearing a shirt and that his pants had blood spots on them. From the cemetery, the appellant, Robert, and Connie went to a friend’s house, where the appellant asked Robert to get him another shirt. Once inside the residence, Robert watched his brother retrieve a knife from a kitchen drawer, cut his own thumb, and then smear his own blood on his pants in an attempt to cover up the victim’s death and provide a reason for the blood spots. According to Robert, the appellant told him to tell Mike that he would “get him” if he said anything about the killing.

The appellant’s theory at trial was that he was acting in self-defense when he caused the victim’s death. According to the appellant, he took the victim to the cemetery to scare her. A methamphetamine addict, she became angry, pulled a knife on the appellant, and threatened to kill Connie and him. They struggled fiercely, and he got control of the knife and stabbed her to death.

At the appellant’s Rule 37 hearing, defense counsel testified that since Robert was going to testify anyway and his testimony would not hurt the appellant, as a matter of strategy, he would be able to cross-examine Robert instead of having to call him as a defense witness. According to defense counsel, the appellant needed Robert’s testimony to corroborate his account of the events. While defense counsel testified that Robert did not need to have his direct testimony impeached, he admitted that he relaxed his cross-examination of Robert because it might have backfired and turned Robert against the appellant.

We articulated the proper standard for reviewing inefifective-assistance-of-counsel claims due to alleged conflicts of interest in Johnson v. State, 321 Ark. 117, 124, 900 S.W.2d 940 (1995):

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

In rejecting the appellant’s conflict claim, the circuit court reasoned that the appellant had not shown that defense counsel had learned anything from the representation of Robert that he did not use in the appellant’s defense. To the contrary, Robert’s testimony, according to the circuit court, actually helped the appellant’s theory of the case in several particulars. For example, Robert’s testimony regarding the victim’s demeanor when she got out of the car at the cemetery was that she was smiling, uttering curse words, and was not scared, though she knew that there was going to be a confrontation with the appellant. Also, according to Robert, the appellant only planned to scare the victim at the cemetery. The circuit court also referenced Robert’s testimony that he did not see the appellant with a knife.

When reviewing Robert’s testimony, we cannot agree that it helped the appellant’s defense. While Robert testified that he assumed that the appellant only wanted to scare the victim, he also described his brother immediately after a purported knife attack by a drug-crazed woman as “calm.” While Robert did testify that he did not see the appellant with a knife, he admitted that he did not know whether either one actually had a knife. He further described the appellant’s methodical acts to cover up his involvement in the killing. Finally, he told the jury that his brother instructed him to threaten Mike that he would “get him” if he said anything about the killing.

We further disagree with defense counsel’s conclusion that Robert was going to be testifying for the State in any event. With different counsel, perhaps, Robert might have invoked the Fifth Amendment and not testified at trial, which would have left the State with a much weaker case against the appellant. Connie, of course, did not testify at the appellant’s trial, leaving only Mike as the principal State witness, and he was not present at the cemetery after the killing. In sum, Robert’s testimony was vital to the State’s case.

We conclude that the dual representation in this case, which involved one client, Robert, entering into a plea agreement and then testifying against the other client, the appellant, created an actual conflict of interest because defense counsel did not effectively cross-examine Robert. See United States v. Unger, 700 F.2d 445 (8th Cir. 1983), cert denied 464 U.S. 934 (1983) (conflict of interest arises where counsel is unable to use his best efforts to exonerate one codefendant for fear of implicating other codefendant). Particularly, defense counsel did not elicit the fact that Robert had been initially charged with capital murder and had pled guilty to a much lesser charge in exchange for his testimony. To be sure, defense counsel could not disparage a deal that he himself had orchestrated. Furthermore, defense counsel did not point out that Robert had not been sentenced for the hindering-apprehension charge and had the potential to avoid serving time in prison if his testimony met with the approval of the State. He did not explore why Robert was testifying against his brother, nor did he point out the fact that the victim’s sister and Robert were romantically involved. Finally, defense counsel admitted that he had treated Robert carefully during cross-examination. Thus, the record in the instant case “luminates the cross-purposes under which defense counsel was laboring.” Glasser v. United States, 315 U.S. 60 (1942); see also Austin v. Erickson, 477 F.2d 620 (8th Cir. 1973).

Under these circumstances, we must conclude that the elements of the Cuyler test, reviewed in Johnson v. State, supra, were satisfied. We hold that there was an actual conflict of interest by defense counsel’s dual representation and that the appellant was adversely affected due to defense counsel’s failure to cross-examine a pivotal State witness effectively. In so holding, it is unnecessary to address the appellant’s remaining ineffective-assistance claims.

Reversed and remanded.

Thornton, J., not participating.


author: David Newbern, Justice.

text:
    Mark TRAVIS v. STATE of Arkansas
    CR 97-1166
    959 S.W.2d 32
    Supreme Court of Arkansas
    Opinion delivered January 8, 1998

      Val P. Price, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Mark Travis, the appellant, was charged with being a felon in possession of a firearm in violation of Ark. Code Ann. § 5-73-103(a)(l) (Repl. 1997). Mr. Travis contended his arrest was unlawful and that evidence (the firearm) seized as a result of his arrest should have been suppressed. The Trial Court denied the motion to suppress, and Mr. Travis entered a conditional plea of guilty pursuant to Ark. R. Crim. P. 24.3(b), reserving the right to appeal the Trial Court’s suppression ruling. Mr. Travis received a 12-month “suspended imposition of sentence” with credit for five months time served. The Court of Appeals reversed the Trial Court’s suppression ruling. Travis v. State, 58 Ark. App. 320, 954 S.W.2d 277 (1997). We granted the State’s petition to review the decision of the Court of Appeals and now affirm the Trial Court.

When we grant a petition for review pursuant to Ark. Sup. Ct. R. 2-4, we treat the appeal as if it were filed in this Court originally. Arkansas State Hwy. Comm’n v. Post, 330 Ark. 369, 955 S.W.2d 496 (1997); Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997).

In reviewing a ruling denying a defendant’s motion to suppress, we make an independent determination based on the totality of the circumstances and view the evidence in the light most favorable to the State. We reverse only if the Trial Court’s ruling is clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). Applying these principles, we conclude the Trial Court correctly denied Mr. Travis’s suppression motion.

At the suppression hearing, Lawrence County Deputy Sheriff Glen Smith testified that he was on duty on the afternoon of February 24, 1996, when he observed Mr. Travis’s truck heading northward on U.S. Highway 67. The Texas license plate on the truck did not display expiration-date stickers. Believing that the license plate was required to display a sticker, Deputy Smith stopped the truck and approached it.. Mark Travis’s nephew, James Travis, was in the driver’s seat, and Mark Travis was in the passenger’s seat. Deputy Smith discovered that James Travis had been driving the truck on a suspended driver’s license and that Mark Travis had a Texas felony record and had had his driver’s license suspended as well. Eventually, Deputy Smith realized that Texas law did not require a Texas license plate to display an expiration sticker and that Mr. Travis’s truck properly displayed the type of sticker on the front window as required by Texas law.

Deputy Smith took James Travis into custody for driving on a suspended license. As neither James Travis nor Mark Travis was licensed to drive, Deputy Smith called for a tow truck to transport the truck from the scene. Deputy Smith placed the Travises in his unit and returned to the truck to secure it for towing. When Deputy Smith opened the door in order to roll up the window, he observed in plain view a .22 rifle “sticking out from behind the seat.” Deputy Smith then arrested Mr. Travis for being a felon in possession of a firearm.

Mr. Travis’s argument is that the rifle, discovered as a result of the stop he considers to have been unlawful, should be suppressed under the “fruit of the poisonous tree doctrine.” See Wong Sun v. United States, 371 U.S. 471 (1963). It is not disputed that Deputy Smith made the stop on the basis of his belief that the Texas license plate was required to display an expiration sticker and that the truck was thus being operated in violation of the law. Mr. Travis does not contend that Deputy Smith’s action in stopping the truck was pretextual. His contention is that, because the deputy’s understanding of the Texas licensing requirements was erroneous, there was no “probable cause,” or even “reasonable suspicion,” to make the stop.

It is well settled that “a police officer may stop and detain a motorist where the officer has probable cause to believe that a traffic violation has occurred.” Burris v. State, 330 Ark. 66, 71, 954 S.W.2d 209 (1997). See Whren v. United States, 116 S. Ct. 1769 (1996); Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994). See also Ark. R. Crim. P. 4.1(a) (permitting warrantless arrest if officer has “reasonable cause” to believe that defendant has committed “any violation of law in the officer’s presence”).

“[T]he relevant inquiry is whether [the officer] had probable cause to believe that [the defendant] was committing a traffic offense at the time of the initial stop.” Burris v. State, 330 Ark. at 72.

We have previously explained that probable cause exists when the facts and circumstances within an officer’s knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994); Johnson v. State, 299 Ark. 223, 772 S.W.2d 322 (1989). In assessing the existence of probable cause, our review is liberal rather than strict. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997).

Burris v. State, 330 Ark. at 72.

As mentioned, Deputy Smith testified that he stopped Mr. Travis’s truck because he believed the Texas license plate was required to display an expiration sticker and that the truck was thus being operated in violation of the law. Arkansas Code Ann. § 27-14-704 (Repl. 1994) specifies the instances in which a vehicle licensed and registered in another state may be operated in Arkansas. One of the requirements is that the out-of-state vehicle comply with the other state’s applicable registration laws.

Deputy Smith believed that the law of Texas, like the law of Arkansas, required license plates to display expiration stickers. Although the deputy was erroneous, the question of whether an officer has probable cause to make a traffic stop does not depend upon whether the defendant is actually guilty of the violation that was the basis for the stop. As we said in the Burris case, “all that is required is that the officer had probable cause to believe that a traffic violation had occurred. Whether the defendant is actually guilty of the traffic violation is for a jury or a court to decide, and not an officer on the scene.” Burris v. State, 330 Ark. at 73, citing Whren v. United States, supra; State v. Jones, 310 Ark. 585, 839 S.W.2d 184 (1992).

The facts of this case are unlike those found in Delaware v. Prouse, 440 U.S. 648 (1979), which formed the foundation of the Court of Appeals decision in this case. There was no issue of reasonable or probable cause in the Prouse decision because that case involved a “random” traffic stop. We cannot say that Deputy Smith lacked reasonable cause to stop Mr. Travis’s truck simply because the truck ultimately was found to have been operated in compliance with Texas law. At the time of the stop, Deputy Smith reasonably, albeit erroneously, believed the license plate was required to display expiration stickers. That the license plate was later found to have been in compliance with Texas law does not mean that the deputy lacked probable cause to make the stop. See People v. Glick, 250 Cal.Rptr. 315, 319, 203 Cal.App.3d 796 (Cal.App. 1 Dist. 1988) (holding officer’s stop of New Jersey vehicle was reasonable even though based on officer’s erroneous understanding of New Jersey registration laws and stating “An officer cannot reasonably be expected to know the different vehicle registration laws of all the sister states.”).

Affirmed.


author: Robert L. Brown, Justice.

text:
    George LANDRETH v. STATE of Arkansas
    CR 97-716
    960 S.W.2d 434
    Supreme Court of Arkansas
    Opinion delivered January 8, 1998
    [Petition for rehearing denied February 19, 1998.]

      Arkansas Public Defender Comm’n Capital, Conflicts & Appeals Office, by: Jeffrey Weber, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This case arises out of the conviction of appellant, George Landreth, for the murder of Daisy Galaher. Landreth was convicted of capital murder and sentenced to life in prison without the possibility of parole. He raises five points on appeal which include issues of prosecutorial misconduct, discovery violations, and the alleged overlap of the capital murder and first-degree murder statutes. None of the issues raised has merit, and we affirm.

On March 15, 1995, Landreth was living with his ex-wife, Patricia Summerville, and her seventeen-year-old son, Shannon Summerville. Shannon testified at trial that Landreth came to the Summerville home at about 8:45 p.m. on that date. He first told Shannon and then told both Patricia Summerville and Shannon that he had killed Daisy Galaher. Landreth related to Shannon that he had picked up Galaher to go for a drive with him and that they went to the Tri-County Lake spillway, where they got out of the truck. Landreth put on his gloves, grabbed a shotgun from behind the seat of his truck, and shot her. The first time that he shot, he hit her in the arm. The second time, he shot her in the head. Landreth explained that he intended to dispose of her body in a well, but the body was too heavy. He eventually dragged her body to the Tri-County Lake spillway and left her in the water.

Patricia Summerville testified that in a separate conversation that same night, with Shannon present, Landreth told her the same story. She also testified that she and Laura Baker, who was Landreth’s daughter, went over to his house the following morning and that he gave more details of the murder to both of them. Ms. Summerville testified that she and Laura Baker encouraged him to turn himself in, but that he refused to do so because he believed he could not be convicted because he had thrown the shotgun and Galaher’s purse into the river.

In her testimony, Laura Baker confirmed the testimony of Patricia Summerville by testifying that they had been to see Landreth on the morning of March 16, 1995, and that he had given a detailed account of how he killed Galaher. Baker also testified that she had gotten two telephone calls from her father about the murder. In the first conversation which took place around 4:00 p.m. on March 15, 1995, Landreth said he was going to kill Galaher. In the second conversation which occurred that night between 8:00 p.m. and 8:30 p.m., Landreth told Baker that he had killed her.

The State also presented physical evidence linking Landreth to the murder. Chanteil Bequette, a criminalist with the State Crime Lab, testified that she found hairs that were similar to those of the victim in the truck driven by Landreth. She also found gunpowder residue on Landreth’s hands. Lawrence Quill, a special agent with the F.B.I., testified that the DNA profiles from the blood taken from scrapings on the back of the truck driven by Landreth substantially matched the DNA profiles of the victim. The physical evidence at the crime scene testified to by investigators with the Arkansas State Police and the county which included the pools of blood and drag marks to the water corroborated the testimony given by the Summervilles and Baker.

I. Right to Remain Silent

For his first point, Landreth claims that the prosecutor improperly made reference to the fact that he had not testified in his own defense. Because of this, he contends that the trial court should have granted his motion for a mistrial due to the prejudice caused by the remark.

During closing argument, the prosecutor made this argument to the jury about Landreth’s conversation with Laura Baker:

Have you heard anything about that conversation other than what Laura said was said? No. The reason why you’ve haven’t is because the truth hurts.

Landreth objected to this as a comment on his failure to testify because he was the only other person with knowledge of his conversation with Baker. The trial court overruled the objection without additional comment. The State continued with its argument:

Ladies and gentlemen, as I was saying, other than what we heard Laura Baker say was the substance of that conversation, we heard nothing else. And she said to you that, “My dad called and he said, ‘I did it.’” And Laura said, “Did what?” “I killed Daisy. I killed Daisy.” That’s exactly what he said at 4:00 o’clock that he was gonna do, and that’s exactly what he said he did at 8:30. And then further —.

The trial court interrupted the prosecutor and called the attorneys to the bench for a sidebar conference. He advised the prosecutor that he was “flirting” with a comment on the defendant’s failure to testify and warned him accordingly. The defense counsel again objected to no avail. Counsel made no request for a declaration of a mistrial or for an admonition to the jury.

The State does not argue to this court that Landreth’s objection was not properly preserved or that the comment made by the prosecutor was not a comment on the defendant’s failure to testify. Rather, the State argues that the prosecutor’s comment was harmless in light of the overwhelming evidence amassed against Landreth.

First, we believe the prosecutor’s argument was an impermissible comment on Landreth’s right to silence guaranteed by the Fifth Amendment. It has long been the law in this state and this country that a prosecutor may not draw attention to the fact of, or comment on, a defendant’s failure to testify. Otherwise, by commenting on his silence, the State makes the defendant a witness against himself and thereby violates the defendant’s Fifth Amendment rights. See Chapman v. California, 386 U.S. 18 (1967). See also Bradley v. State, 320 Ark. 100, 896 S.W.2d 425, (1995) (citing Act 82 of 1885, now codified as Ark. Code Ann. § 16-43-501 (Repl. 1994)). Even a veiled reference to the defendant’s silence is improper. Bradley v. State, supra; Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978).

The comment made by the prosecutor in the instant case is very similar to that made in Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985), where the prosecutor proclaimed in closing argument:

The only thing that we’ve heard here today about which occurred in that room is from [the victim]. She’s the only person. The two ladies that were called they weren’t in that room.

Bailey, 287 Ark. at 184, 697 S.W.2d at 110. The fact that the only two people in the room were the victim and the defendant meant that the defendant was the only other person who could have testified about what happened in that room. The same holds true in the instant case. In both situations, the prosecutor wrongfully alluded to the defendant’s failure to testify.

But our analysis does not end there. In Bradley v. State, supra, this court discussed what is required to find that a prosecutor’s improper comment on the defendant’s constitutional right not to testify was harmless error:

In Chapman v. California, 386 U.S. 18 (1967), the Supreme Court declared that references to a defendant’s failure to testify violate the Fifth Amendment privilege against self-incrimination, but can be harmless error if it is shown beyond a reasonable doubt that the error did not influence the verdict. [Griffin v. California, 380 U.S. 609, 615 (1965).] Practical application of the Chapman test involves excising the improper remarks and examining the remaining evidence to determine if it can be shown beyond a reasonable doubt that the error did not influence the verdict. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989).

Bradley v. State, 320 Ark. at 105, 896 S.W.2d at 428. We went on to hold in Bradley that the evidence against the defendants was so overwhelming that the comments constituted harmless error.

Likewise, after discarding the testimony of Laura Baker, which, we conclude, was tainted by the prosecutor’s argument, there remains overwhelming evidence of Landreth’s guilt which renders the improper comments harmless beyond a reasonable doubt. The State presented the testimony of two other witnesses, Shannon Summerville and Patricia Summerville, to whom Landreth confessed his crime. Both related the detailed account he had given to them of how he killed the victim. Landreth challenges the credibility of the Summervifles, but the jury, as factfinder, chose to believe them. The testimony of the two witnesses was also independently corroborated by the physical evidence collected by the State, including hair similarities, blood splatters, corresponding DNA profiles for the blood found on the back of the truck and the victim’s blood, and positive gun residue tests on Landreth’s hands as well as the bloody drag marks at the crime scene. Hence, had Baker never testified, there remained overwhelming evidence of Landreth’s guilt. The error, accordingly, was harmless beyond a reasonable doubt. For that reason, we hold that the prosecutor’s comment on Landreth’s failure to testify did not constitute reversible error.

We also note that the trial court found in its order denying the motion for a new trial that the jury would have reached the same result even without the testimony of Laura Baker. Though this finding was due to Baker’s recanting of her trial testimony and then her later affirmance of it, this is additional confirmation of the fact that the State’s evidence was .more than sufficient even without Baker’s testimony.

II. Continuance

Next, Landreth claims that the trial court erred in not granting him a continuance, or, in the alternative, a new trial based on the fact that both defense counsel and the prosecutor received an anonymous letter containing exculpatory evidence three days before the trial. Landreth adds that the prosecutor did not divulge this information to him or properly investigate the exculpatory information. The letter in question set out a story in which the victim, Daisy Galaher, was not killed by Landreth but instead was kidnapped and delivered to several people outside the county as part of an intricate drug operation. This apparently led to her death. The anonymous letter contained the names of those involved in the “conspiracy.” Some of the names appeared from their context in the letter to be aliases while others were the actual names of people with a criminal history.

On the day of the trial, defense counsel moved for a continuance to give him time to investigate the allegations in the letter. A hearing was immediately held where Landreth argued that the prosecutor had received the same letter, had not informed the defense counsel, and had not fully investigated the letter. The State answered with the testimony of Arkansas State Police Investigator Glenn Sligh to show that an investigation into the letter had been commenced but that nothing had been developed to substantiate any assertions in the letter. The trial court ruled that the investigation of the letter should continue, but it denied the continuance motion. The court added that it could not continue a trial every time an anonymous letter appeared a few days before the trial date.

Following the conviction in this matter, the trial court considered the defense counsel’s motion for a new trial, which was based partially on the allegation that the State had not properly investigated the letter. Landreth offered evidence of the State’s inactivity with regard to the letter. The trial court ruled that though it was concerned about the actions taken by the prosecutor, based on the evidence submitted, including the letters themselves, there was insufficient evidence to justify a new trial.

This court has made it clear that a motion for a continuance is addressed to the sound discretion of the trial court, and the court’s decision will not be reversed absent an abuse of discretion. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Hill v. State, 321 Ark. 354, 912 S.W.2d 229 (1995); Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995). Continuances are governed in part by Ark. R. Crim. P. 27.3, which requires good cause and a consideration of the public’s interest in a prompt disposition of cases.

Continuances are further governed by statute which requires an affidavit from the defense:

[S]howing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it. If the motion is for an absent witness, the affidavit must show what facts the affiant believes the witness will prove and not merely show the effect of the facts in evidence, that the affiant himself believes them to be true and that the witness is not absent by the consent, connivance, or procurement of the party asking the postponement.

Ark. Code Ann. § 16-63-402(a) (1987). This court has further required that the movant for a continuance show by affidavit the likelihood of procuring the absent witnesses. See Travis v. State, supra; Hill v. State, supra; Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993).

Landreth has not shown that the trial court abused its discretion in denying the motion for continuance. Landreth made no showing of any likelihood of procuring the absent testimony. All that he presented was the anonymous letter itself. Moreover, as the State properly underscores in its brief, the record does not reveal that Landreth ever filed an affidavit showing the materiality of the evidence expected to be obtained or that due diligence had been used to obtain that evidence, as required by § 16-63-402(a). Finally, Landreth cannot succeed in his argument that the State violated Brady v. Maryland, 373 U.S. 83 (1963), and Ark. R. Crim. P. 17.1, when his counsel also received the letter in question before trial.

Landreth further contends that because the State did not conduct an effective investigation, the trial court should have granted his motion for a new trial. The deficiency in this argument is that we have held a defense counsel cannot simply rely on the State’s investigation as a substitute for his or her own. See, e.g., State v. Pulaski County Circuit Court, 316 Ark. 514, 872 S.W.2d 414 (1994). Nor can defense counsel or the court require the State to take a particular investigative course. Id. In order to succeed in a motion for new trial, a defendant has the burden of developing and presenting evidence sufficient to show that a new trial is warranted, which, again, is discretionary with the trial court. See Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997). Defense counsel had a month to develop supporting evidence. He failed to do so and, thus, the burden was not met.

Moreover, the State presented evidence that an investigation had indeed been conducted which led the prosecutor to believe that the anonymous letter was a ruse. The letter claimed that the culprit behind the kidnapping and murder of the victim was the son of an ex-husband of the victim. However, the police investigation uncovered that there were no living sons of ex-husbands of the victim who could have been responsible for the crime.

The trial court correctly denied the motion for a continuance and the motion for a new trial.

III. Overlap

Landreth next argues that the definition for capital murder found in Ark. Code Ann. § 5-10-101 (A)(4) (Repl. 1993), “impermissibly overlaps” with the definition of first-degree murder found in § 5-10-102(A)(2) (Repl. 1993), and, therefore, the jury was given unfettered discretion to convict him of either offense which violates the Eighth and Fourteenth Amendments to the United States Constitution. This proposition has been squarely rejected by this court, when the death penalty has been at issue. See, e.g., Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995) , cert. denied, 116 S. Ct. 1436 (1995); Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996), cert. denied, 117 S. Ct. 436 (1996) . Landreth relies on death-penalty cases for the most part in making his argument, even though the State waived the death penalty in this case. Landreth presents us with no good reason to overturn our line of death cases, and we decline to do so.

Landreth does contend, without really developing the issue, that overlapping in the two statutes resulted in an arbitrary verdict in this case, but beyond making this conclusory statement, he does not tell this court how the statutes overlap or explain why this is reversible error when the death penalty is not involved. Surely, giving the jury the option of considering the lesser included offense of first-degree murder did not inure to Landreth’s detriment. This point is without merit.

IV. Public Defenders

For his final point, Landreth urges that the prosecutor’s reference to defense counsel as “public defenders” on cross-examination of a witness resulted in such prejudice that it could only be cured by the trial court’s declaring a mistrial. During the cross-examination of a witness, the prosecutor asked the witness if he “had ever told anyone other than the public defenders that you saw . . . .” Defense counsel objected and asked for a mistrial. The court denied the motion and offered to admonish the jury to disregard the last question. Defense counsel reluctantly accepted the admonition. Landreth now claims that the admonition was insufficient to correct the error.

This court has previously rejected a similar argument where the trial court referred to defense attorneys “from the Public Defender’s Office.” See Vaughn v. State, 289 Ark. 31, 709 S.W.2d 73 (1986). In Vaughn, we opined that the objection made was more speculative than practical. Id. The same is true here. Any prejudice caused by reference to the defense counsel as “public defenders” is speculative at best. Even defense counsel, in making the objection, admitted that he did not believe that the reference should be prejudicial, but he thought others might be prejudiced. If there was prejudice, and this court is highly skeptical that any prejudice attached to the comment, it was not so great as to warrant a mistrial. In any event, it was cured by the admonition. Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992); Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). There was no reversible error in this regard.

V. Rule 4.3(h)

The record has been researched for prejudicial error in accordance with Ark. S. Ct. R. 4-3 (h), and none has been found.

Affirmed.


text:
    Altricia MUHAMMAD v. STATE of Arkansas
    CR 97-1048
    957 S.W.2d 186
    Supreme Court of Arkansas
    Opinion delivered January 8, 1998

      Gregory Bryant, for petitioner.
    No response.
   Per Curiam.

The procedural background in this matter is set forth in our per curiam opinion delivered on December 11, 1997. Muhammad v. State, 330 Ark. 759, 957 S.W.2d 692 (1997). Attorney Gregory Bryant, counsel for petitioner Altricia Muhammad, was ordered to appear before this court on January 8, 1998, to show cause why he should not be held in contempt for his failure to file Ms. Muhammad’s brief in a timely manner. At his request, Mr. Bryant appeared on December 18, 1997, entered a plea of guilty to the contempt citation and accepted full responsibility for failing to file Ms. Muhammad’s brief.

Based on the foregoing, we hold that Mr. Bryant is in contempt of court for failing to file Ms. Muhammad’s brief in a timely manner. We assess a fine of $250.00 and direct that he file a belated brief in this matter within thirty days from the date this per curiam order is entered. A copy of this order will be forwarded to the Committee on Professional Conduct.

Arnold, C.J., not participating.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    AGRICULTURAL GROUP-COMPENSATION SELF-INSURER FUND v. POLK COUNTY CIRCUIT COURT
    97-252
    958 S.W.2d 531
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998

      Friday, Eldredge & Clark, by: Robert S. Shafer and Guy Alton Wade, for petitioner.

      Mary M. Rawlins, for real party in interest Wellco Enters., Inc., d/b/a Wellco Feed Mill.
   W.H. “Dub” Arnold, Chief Justice.

This is a petition for a writ of prohibition filed by petitioner Agricultural Group-Compensation Self-Insurer Fund (“AgComp SIF”), the workers’ compensation carrier for Wellco Enterprises, Inc., d/b/a Wellco Feed Mill. The respondent is the Polk County Circuit Court. We deny the writ.

On February 26, 1993, Wellco employee Donald Kenyon was injured while on the job. He filed a claim with the Workers’ Compensation Commission against Wellco and AgComp SIF, a trust that provides workers’ compensation benefits to its members as a self-insured fund. See Ark. Code Ann. § 11-9-404 (Repl. 1997). When no further action was taken by any party, the commission dismissed Mr. Kenyon’s claim without prejudice.

Thereafter, Wellco and its individual owner, John E. Wells, filed an action in Polk County Circuit Court against AgComp SIF’s agent, the Agricultural Council of Arkansas, alleging that Mr. Kenyon was an employee of Wellco at the time of his injury and that he was covered by AgComp SIF insurance. Wellco further alleged that the council fraudulently collected premium payments and breached the parties’ contract by refusing to pay compensation to Mr. Kenyon.

Wellco subsequently amended its complaint, substituting AgComp SIF as the sole defendant. Alleging breach of contract, Wellco sought $7,821.28 in damages, representing the amount it had paid for Mr. Kenyon’s medical expenses. Attached to and incorporated in the amended complaint was a copy of the AG-COMP SIF trust agreement. AgComp SIF denied the material allegations of the complaint and amended complaint and pleaded affirmatively that Wellco’s action was barred by the exclusive-remedy provision of the Workers’ Compensation Act. According to AgComp SIF, the Polk County Circuit Court lacked jurisdiction to determine Mr. Kenyon’s status as an employee or independent contractor and thus decide the case. AgComp SIF filed a motion to dismiss and a motion to reconsider on this basis, but the circuit court denied both motions. This petition for writ of prohibition followed.

In Travelers Ins. Co. v. Smith, 329 Ark. 336, 339-340, 947 S.W.2d 382 (1997), we outlined the applicable standard of review in these cases as follows:

A writ of prohibition is an extraordinary writ that is appropriate only when the lower court is wholly without jurisdiction. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996); West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994). When considering the propriety of issuing the writ, this court’s review of jurisdiction is limited to the pleadings. Western Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996); Nucor Holding Corp. v. Rinkines, supra. Where the encroachment on workers’ compensation jurisdiction is clear, a writ of prohibition is warranted. Western Waste Indus v. Purifoy, supra; Nucor Holding Corp. v. Rinkines, supra.

In considering whether a petition for writ of prohibition lies, jurisdiction is tested on the pleadings, not the proof. Nucor-Yamato Steel Co. v. Circuit Court, 317 Ark. 493, 878 S.W.2d 745 (1994); The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993), reh’g denied 315 Ark. 336-A, 869 S.W.2d 8 (1994).

AgComp SIF claims that prohibition lies in this case because Wellco’s suit is at odds with the exclusive-remedy provision of the Workers’ Compensation Act. See Ark. Code. Ann. § 11-9-105(a) (Repl. 1996). This provision provides, in pertinent part, that:

The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone otherwise entitled to recover damages from the employer, or any principal, officer, director, stockholder, or partner acting in his capacity as an employer, or prime contractor of the employer, on account of the injury or death, and the negligent acts of a co-employee shall not be imputed to the employer.

In asserting that the circuit court is wholly without jurisdiction to hear Wellco’s claim, AgComp SIF relies primarily on two cases — Cain v. National Union Life Ins. Co., 290 Ark. 240, 718 S.W.2d 244 (1986), and Seawright v. U.S.F. & G. Co., 275 Ark. 96, 627 S.W.2d 557 (1982).

In Cain, the claimant filed a complaint against the workers’ compensation carrier and pled that the insurer stipulated that it was liable for all medical expenses but then failed to make payment. The claimant alleged that this failure caused him emotional distress. The trial court dismissed the complaint, and we affirmed the dismissal on grounds of exclusivity of the workers’ compensation remedy. Thus, Cain involved a claimant’s suit against the carrier, not a suit between an insurer and its insured as in the case before us.

In Seawright, an insured brought suit against his carrier for fraud and deceit, bad faith in tort, breach of a fiduciary relationship, and intentional interference with a protected property interest in handling his employee’s workers’ compensation claim. The unique fact in Seawright was that the employer was the husband of the employee-claimant. Fie filed suit while his wife’s claim was pending before the commission, which subsequently found that the claim was barred by the statute of limitations. On appeal, we held that the employer’s liability as an employer was discharged when his employee’s claim was barred by limitations. 275 Ark. at 99. As to the liability of the employer as an individual, we said that, because the insurance policy was not in the record, we could not determine that the policy covered any such general, individual liability. Thus, we held that the lower court correctly dismissed the employer-husband’s complaint for failure to state a cause of action. In short, we fail to see how the unique facts in Seawright, a case we decided on appeal, support AgComp SIF’s contention that prohibition is warranted in the instant action.

Turning to the pleadings, Wellco’s amended complaint alleges that AgComp SIF breached the parties’ trust agreement by refusing to pay for Mr. Kenyon’s injuries. When examining the parties’ trust agreement incorporated in the amended complaint, we observe that it contains two coverages — Coverage A, entitled “Workers’ Compensation” coverage, and Coverage B, termed “Employers’ Liability” coverage. Article VII, paragraph 7.2(c)(4), of the parties’ agreement specifically excludes from Coverage B “ [a] ny obligation imposed by a workers’ compensation . . . law or any similar law.” WeEco specificaEy aEeges in its complaint that Mr. Kenyon’s injuries came within Coverage B of the policy, termed “Employer’s LiabEity.” Thus, it is disputed whether workers’ compensation law is implicated in this case.

When examining the pleadings together with the foregoing authority, we must conclude that AgComp SIF has faEed to meet its burden of demonstrating that it is clearly entitled to the remedy of prohibition. See Nucor-Yamato Steel Co. v. Circuit Court, supra. Accordingly, we deny the writ.

Writ denied.


text:
    Shelby John TIPTON v. STATE of Arkansas
    CR 97-682
    959 S.W.2d 39
    Supreme Court of Arkansas
    Opinion delivered January 15, 1998

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly Terry, Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

This is an interlocutory appeal from an order of the Pulaski County Circuit Court, Fourth Division, denying appellant Shelby John Tipton’s double-jeopardy-based motion to dismiss his second-degree battery charge. We affirm the trial court’s order.

On February 25, 1996, a fight broke out at B. J.’s Star Studded Honky Tonk in Little Rock during which the appellant allegedly struck Bradley Wood in the head with a beer bottle, crushing bones in his face. Thereafter, on May 20, 1996, the appellant was charged by felony information with second-degree battery. His case, Case No. CR 96-1333, was assigned to the First Division of Pulaski County Circuit Court. The appellant waived a jury trial, and a bench trial was set for January 6, 1997.

On the day of trial, while police officers who allegedly witnessed the appellant strike the victim were present, the victim did not appear. The State asked the trial court for a continuance to secure the presence of the victim for trial, but the trial court denied the motion. The appellant moved to dismiss the State’s charge, which the trial court granted for the State’s “failure to prosecute.” No witnesses were sworn at this proceeding.

On January 31, 1997, the State filed a second felony information charging the appellant with second-degree battery. The case was assigned a new case number, Case No. CR 97-172, and was assigned to the Fourth Division of Pulaski County Circuit Court. Subsequently, the appellant filed a motion to dismiss, claiming that the Double Jeopardy Clause of the Fifth Amendment prohibited the State from pursuing the battery charge. At a hearing on the motion, the appellant asserted that the prior dismissal of the battery charge amounted to an acquittal because the State lacked evidence sufficient to convict him on the date set for trial. In response, the State explained that the victim, a former resident of Heber Springs, had moved to Oklahoma and had not been served with his subpoena for the January 6, 1997, trial. Because the trial judge in that proceeding had dismissed the charge without hearing any evidence, the State maintained that double jeopardy did not prohibit refiling of the charge. After considering both arguments, the trial court denied the appellant’s motion to dismiss. The appellant now appeals that ruling.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects a defendant from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Johnson, 330 Ark. 636, 956 S.W.2d 181 (1997); Edwards v. State, 328 Ark. 394, 943 S.W.2d 600 (1994). The appellant claims that he is protected from a second prosecution for second-degree battery because he was acquitted of that charge when the trial court dismissed it at the conclusion of the January 6, 1997, proceeding. The State responds that, because no witnesses were sworn at appellant’s January 6, 1997, bench trial, jeopardy did not “attach” to that proceeding. Willis v. State, 299 Ark. 356, 772 S.W.2d 584 (1989), citing Serfass v. United States, 420 U.S. 377 (1975) (“In bench trials, jeopardy attaches when the trial judge hears the first witness and not until then.”). The State further relies on Ark. Code Ann. § 5-1-122 (Repl. 1994), which provides:

A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
(3) The former prosecution was terminated without the express or implied consent of the defendant after the jury was sworn or, if trial was before the court, after the first witness was sworn, unless the termination was justified by overruling necessity.

The appellant acknowledges the United States Supreme Court’s holding in Serfass v. United States, supra, but contends that, because that case involved a jury trial, the Supreme Court’s language regarding time of attachment of double jeopardy in bench trials is “mere dicta and of no precedential weight.” We disagree. In Serfass, the Supreme Court explained the usefulness of defining a point in criminal proceedings at which the policies underlying double jeopardy are implicated, and explained those policies as follows:

The State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Serfass, 420 U.S. at 388, citing Green v. United States, 355 U.S. 184, 187-188 (1957). These policies, which apply to both jury and bench trials, were never implicated in the January 6, 1997, proceeding because the trial judge in that proceeding did not begin to hear evidence against the appellant before dismissing his case. In other words, the appellant was not “put to trial before the trier of the facts” in the January 6, 1997, proceeding. Id.

The appellant further asserts that, if the State’s present charge against him is not dismissed, it would take away the court’s power to control its docket. According to the appellant, the State would never be prepared for a bench trial on the date the trial court orders it to be ready. The appellant’s arguments disregard the fact that the State must abide by speedy-trial rules in bringing cases to trial. See Ark. R. Crim. P. 28.3 (1997).

Finally, the appellant asserts that the State should have asked the trial judge in the January 6, 1997, proceeding to reconsider his ruling rather than refile the second-degree battery charge. The appellant, however, neither cites authority nor makes a convincing argument in support of his contention. Thus, we will not consider his argument. See Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997).

Based on the foregoing, we affirm the trial court’s decision.