author: Conley Byrd, Justice.

text:
    Larry W. STEFFEN v. STATE of Arkansas
    CR 79-130
    590 S.W. 2d 302
    Opinion delivered December 17, 1979

      John W. Achor, Public Defender, by: William H. Patterson, Jr., Chief Appellate Attorney.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Larry W. Steffen was found guilty of aggravated robbery and theft of property exceeding $2,500 in value. Pursuant to the Habitual Criminal Statute the jury fixed his punishment at 50 years on the aggravated robbery charge and 30 years on the theft charge. The trial court directed that the sentences should run consecutively. For reversal appellant makes the following contentions:

‘ ‘I. Trial court erred in failing to hold the prosecutor to the bargain made with the appellant in return for his cooperation done in good faith.
II. Trial court erred in failing to grant a mistrial requested due to the highly prejudicial remarks made by the prosecutor in closing argument.
III. Trial court erred in sentencing phase when Contra to Arkansas Statutes Ann. § 41-1001, three (3) single offenses were counted as multiple convictions for purposes of the Habitual Offenders Statute.”

POINT I. Appellant contends that he was told by the prosecuting attorney’s office that if he cooperated with the officers in clearing up some crimes in Pulaski County there would be no less than 7 nor more than 10 years on the charges here made against appellant. Lloyd Haynes, deputy prosecuting attorney admits that without the benefit of the office file, he had a conversation with appellant in which he discussed seven to ten years. However, Lloyd Haynes says that he did not recall discussing the fact that appellant was charged as a habitual offender or whether he even knew that appellant was charged as a habitual offender. At the time he did not consider his statements to appellant as being a binding agreement. Appellant did advise Haynes that appellant would “fill up the jail.”

Jim King with the Arkansas State Police, who was with appellant when he had the telephone conversation with Lloyd Haynes, testified that the number seven was mentioned but that he did not know whether the appellant or Haynes suggested it. Officer King further testified that Haynes stated appellant would be charged as a habitual offender. Upon cross-examination, King stated that Haynes had said that as soon as the burglaries were “cleared up” by appellant the aggravated robbery charge would be discussed. Appellant, Officer King, and Haynes were the only witnesses to the telephone conversation which is alleged to have resulted in the agreement between the prosecutor’s office and the appellant.

The burden of proof on appeal is upon appellant to show the existence of any agreement. Hammers v. State, 261 Ark. 585, 550 S. W. 2d 432 (1977). Although Hammers involved an immunity agreement rather than a plea bargain, the essential issue concerned negotiations and an exchange of promises. The determination of the existence of a valid agreement between the state and the defendant is a matter within the sound judicial discretion of the trial court, Hammers, supra, and the trial court’s finding as to the existence of the agreement should not be reversed upon appeal absent an abuse of discretion.

It is evident that the testimonies of the three witnesses conflict on the essential question of whether the seven year figure was an exact and binding one or simply an estimate. There is also disagreement as to whether the validity of the agreement was contingent upon appellant first clearing up the unsolved burglaries. Weighing the evidence in the light most favorable to the appellee, it cannot be said that the terms of the purported agreement were established with such exactness that failure to find the existence of an agreement was an abuse of discretion.

POINT II. Appellant’s next contention is based upon the following excerpt taken from the prosecutor’s closing argument:

“. . . So there’s no doubt what the verdict should be here, ladies and gentleman. He’s guilty of aggravated robbery. At this time you’re only required to go out and find guilty or not guilty on the robbery and the theft. And, when you come back in, we can talk about sentence.”

These remarks, says appellant, were a ‘dead give-away” to the “seasoned” jurors that this was to be a bifurcated trial, thus indicating that appellant had prior convictions and-resulting in prejudice to him. Appellant did not voice his objection, however, until closing arguments had been completed. The proper time for the objection was immediately following the remarks. Jones v. State, 248 Ark. 694, 453 S.W. 2d 403 (1970). See also Shipp v. State, 241 Ark. 120, 406 S.W. 2d 361 (1966). Telling the jurors that they may or may not have further proceedings under similar circumstances has been held without error in absence of objection, Henson v. State, 248 Ark. 992, 455 S.W. 2d 101 (1970).

POINT III. The appellant’s third and final contention goes to the sentencing portion of the trial. The prosecution was allowed to introduce evidence to the jury of three prior burglary convictions against appellant. One of the convictions included aggravated robbery as well as burglary. Another conviction included kidnapping and aggravated robbery as well as burglary, and one conviction was for burglary alone.

Ark. Stat. Ann. § 41-1001 (3) (Repl. 1977) provides, in pertinent part:

‘ ‘(3) For purposes of determining whether a defendant has previously been convicted or found guilty of two (2) or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony convietion or finding of guilt. ...”

The trial court, over defendant’s objections, allowed the offenses to be counted as six separate convictions for purposes of sentencing under the Habitual Criminal Statute, Ark. Stat. Ann. § 41-1001 (Repl. 1977). The jury subsequently assessed appellant’s sentence at fifty years on the aggravated robbery charge and thirty years on the theft charge.

Appellant maintains that under Ark. Stat. Ann. § 41-1001 (3) (Repl. 1977), the prior convictions should have been counted as three rather than six. It is the State’s position, on the other hand, that the appellant made no attempt to offer proof that the attending felonies were indeed the objects of the burglaries. However, Ark. Stat. Ann. § 41-1001 (Repl. 1977) is a penal statute and is therefore to be strictly construed. McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 (1974). The burden, then, was upon the prosecution to offer proof showing that the attending felonies were not the objects of their respective burglaries. Its failure to so do required the prior convictions to be counted as three pursuant to Ark. Stat. Ann. § 41-1001 (3) (Repl. 1977). There is no doubt that appellant was prejudiced by counting his previous convictions as six rather than three. If the count had been three the sentencing range for the aggravated robbery charge would have been ten years to fifty years rather than fifty years to life [Cf. Ark. Stat. Ann. § 41-1001 (1) (a) (Repl. 1977) and § 41-1001 (2) (a)], and the sentencing range on the theft charge would have been five years to thirty years rather than twenty years to forty years [Cf. Ark. Stat. Ann. § 41-1001 (1) (b) (Repl. 1977) and § 41-1001 (2) (b)].

This court has on previous occasions under similar circumstances reduced the appellant’s sentence to the minimum prescribed by law. See McConahay v. State, supra. Accordingly, appellant’s sentence shall be reduced to ten years on the charge of aggravated robbery and five years on the theft of property charge with the sentences to run consecutively unless the State objects to the reduction within 17 calendar days after this opinion becomes final. In the event the State objects to the reduction, the conviction will stand as reversed.

Affirmed on condition of remittitur.

Harris, C.J., not participating and Fogleman, J., would affirm. .


source: Caselaw Access Project

author: Frank Holt, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    BANK OF WALDRON v. SCOTT COUNTY BANK, Et Al
    79-165
    590 S.W. 2d 654
    Opinion delivered December 17, 1979
    (In Banc)

      Friday, Eldredge & Clark, by: Hermann Ivester, for appellant.

      Rose, Nash, Williamson, Carroll, Clay & Giroir, by: William H. Kennedy, III, for appellees.
   Frank Holt, Justice.

Following a hearing, appellee Arkansas State Banking Board, the appellee State Bank Commissioner concurring, approved a charter application submitted by appellee Scott County Bank for location of a bank in Waldron. At a meeting approximately six weeks later, the Board formally approved the charter and adopted written findings of fact and conclusions of law. The circuit court affirmed the Board’s action. Hence this appeal.

At the end of a one day hearing, the Board immediately rendered its 3-2 decision approving the application. The thrust of appellant’s first argument for reversal is that in doing so the Board did not make a sufficient study of the mass of exhibits and data presented by both sides at the hearing before rendering its decision. In other words the Board members could not adequately absorb all of the material presented to justify an immediate decision without discussion and deliberation.

The members of the Board had appellee bank’s application and supporting data for individual study approximately five months before the hearing. The Board had allotted two days for the hearing. However, at the close of the first day, the appellant stated that any additional evidence “would probably be cumulative.’ ’ ‘ ‘ The extent to which an independent study of the evidence in the record is necessary to the required exercise of informed judgment must be left to the wisdom and practical good sense of the agency.” 2 Am. Jur. 2d Administrative Law § 439. Here the evidence presented at the hearing, including various economic reports and the oral testimony, does not appear to be of a highly technical or complex nature in view of the experience and expertise of the members of the Board. Although the decision to approve the application was made immediately following the presentation of the evidence, we cannot say that it is demonstrated the Board failed to adequately consider the evidence. Accordingly, we hold the Board’s decision was not arbitrary and capricious, did not deprive the appellant of due process, was not an abuse of discretion, nor was it in violation of Ark. Stat. Ann. § 67-303.1 (Supp. 1979), which only requires “consideration” of certain factors by the Board.

Appellant’s second contention is related to the first and is also without merit. It argues that the Board’s failure to allow appellant to respond to the proposed findings of fact submitted by appellee bank or to be heard with regard thereto and the Board’s adoption of the proposed findings in toto, was arbitrary and capricious, was an abuse of discretion, and was in violation of appellant’s due process rights and Ark. Stat. Ann. § 5-710 (b) (Repl. 1976). Appellee applicant, as the prevailing party, submitted proposed findings of fact and conclusions of law. Appellant admits that its counsel was provided with a copy of this proposed document ten days prior to the scheduled hearing. Its counsel had requested a hearing before any findings be approved by the Board. Unfortunately, appellant’s counsel was seriously ill when the proposed document was received. His partner communicated a request for a postponement of the hearing. Appellant did not submit any modifications or comments to the proposed findings or any findings of its own. Neither did its counsel, who was ill, attend the scheduled hearing. The Board, after considering the evidence and reaching the same findings and conclusions, is not prohibited from adopting the proposed findings of fact. § 5-710 (b). Further, we note that the proposed findings and conclusions were not adopted in toto but were revised to a limited extent by the Bank Department before submission to the appellant and the Board for its approval. Postponement of the scheduled hearing, of course, was within the discretion of the Board. In the circumstances we find no improper action on the part of the Board or a violation of any of appellant’s rights when the Board adopted, at its scheduled hearing, the proposed findings of fact and conclusions of law.

Appellant’s third contention, admittedly inherent in the first two arguments, is that the Board and the Commissioner failed to rule on each proposed finding of fact as required by § 5-710 (b). In view of our previous discussion, it is clear that the Board complied with this statute.

Appellant next contends that the administrative decision is not final until its petition for rehearing is disposed of by the Board and the Commissioner. Eight days after the initial hearing, appellant filed a petition for a rehearing asking the Board to make specific rulings on each proposed finding of fact. While it is true that the Board has never expressly ruled on the petition, we consider the Board’s approval of the application final. First, there is no statutory requirement that a rehearing be held before the final decision. Second, the petition did not state any new facts which would be presented at the hearing but merely asked that a hearing be held at which the Board would make specific rulings on the proposed findings. The Board is not required to make specific rulings except in its final decision. § 5-710 (b). Third, even though the Board apparently has the authority to grant a rehearing before the final decision, Bank Department Rule 32, the decision to do so lies within its discretion. 2 Am. Jur. 2d Administrative Law § 539. We cannot say that the Board’s failure to rule on the petition, or to hold a rehearing, was an abuse of discretion.

Appellant next asserts that the approval of the charter was arbitrary, capricious, and an abuse of discretion because there was no substantial evidence to support the findings that the capital structure and future earnings prospects of appellee applicant are adequate. Appellant argues that appellee failed to comply with the Arkansas Securities Act, Ark. Stat. Ann. § 67-1241 (Repl. 1966), in the sale of its stock and this noncompliance exposes the appellee bank to potential ruinous liabilities to its stockholders. Appellee responds that the sale of the shares was properly exempted under the Act. We hold that the appellant lacks standing to complain about this matter as “the only persons who might be hurt would be the subscribers to the stock.” Bank of Glenwood v. Arkansas State Banking Board, 260 Ark. 677, 543 S.W. 2d 761 (1976).

Appellant’s sixth contention is two-fold: (1) The Board and the Commissioner did not find that the stockholders of appellee applicant had the confidence of the community as required by Ark. Stat. Ann. § 67-303.1 (Supp. 1979), and (2) there is no substantial evidence to support such a finding. No Arkansas cases are cited, and we find none interpreting this statute in reference to the exactness of the finding required. We are satisfied, however, that the Board’s finding was sufficient by stating “a majority of the stockholders are . . . such as to command the confidence of the community.” As to substantial evidence, we first observe that at the hearing the appellant’s counsel advised the Board that there would be no argument about the character of the people who were asking for the bank charter. Even so, according to appellee’s application, supporting data and the Bank Examiner’s Investigation Report, the majority stockholders are successful individuals in business, professional and other endeavors and are financially sound. They have good characters and reputations. Two are locally elected public officials. The incorporators, who jointly own 52% of the stock, will serve as the bank’s directors and have the primary responsibility of the management of the bank. Community confidence in another of the major stockholders can be inferred from the fact that several Waldron residents sought financing from him through another bank in an adjoining county when they were unable to obtain financing from the appellant bank. In the circumstances we cannot say that there is no substantial evidence to support this finding.

Appellant’s seventh contention is also two-fold: (1) the Board and the Commissioner did not find that appellee applicant’s stockholders are financially able to discharge their financial obligations as required by §§ 67-303.1 and 67-303.2, and (2) there is no substantial evidence to support such a finding. The thrust of the two-fold argument is that the Board made no finding inasmuch as it and the Commissioner improperly conditioned approval of the charter upon appellee applicant’s obtaining FDIC insurance.

We do not agree with appellant that conditioning of the charter approval is in excess of the power of the Board and the Commissioner. § 67-205, in effect, permits the conditioning of charter approval by stating that “if the board shall recommend that conditions designated by it shall be met before the grant of such [an] application, the Bank Commissioner shall grant the application only after the conditions mentioned in such recommendation have been complied with . . . .” Certainly a requirement that the applicant secure FDIC insurance is in harmony with the Board’s statutory duty “to attain and maintain the maximum degree of protection for depositers.” See Ark. Stat. Ann. § 67-204 (Repl. 1966); and 2 Am. Jur. 2d Administrative Law §§ 300-304.

Appellant asserts last that there is no substantial evidence to support the finding that there “exists a public necessity of the business of the community” of Waldron for another bank as required by § 67-303.1. Contrary to this contention, there is evidence that Waldron is in an area of the state which is expected to experience substantial growth and development within the next five years. A study indicated that employment in that region will increase by an average of 24%; i.e., 27.7% increase in employment in goods-producing industries and a 20% increase in service industries. Also an increased need is predicted for workers in the region in almost all major occupational groups. Wholesale and retail sales in Scott County have increased significantly in the last five years, indicating a stable economic growth. New residential construction is increasing. There is evidence of a $4 million industrial expansion of a local manufacturer, providing substantial benefits for related service industries. Several firms are planning or beginning coal mining operation in the county. Evidence was adduced that residents of the community were using banks outside the county to meet their banking needs. We hold, although the evidence is in conflict, there is substantial evidence in the record as a whole to support the Board’s finding of a public necessity in the community for the proposed bank. See Arkansas Racing Commission, supra; and Arkansas S&L Board v. Central Arkansas S&L, 260 Ark. 59, 538 S.W. 2d 505 (1976).

Affirmed.

Harris, C.J., not participating.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the result but I strongly feel that the procedures followed by the Arkansas State Banking Board were subversive of the intent and purposes of the Arkansas Administrative Procedure Act and thereby hamper judicial review.

       We granted appellee’s motion to make this report part of the record. We now consider it upon reaching the merits of the case.


author: Darrell Hickman, Justice.

text:
    THE EXCHANGE BANK & TRUST COMPANY v. Dorothy J. MATHEWS et al
    79-186
    591 S.W. 2d 354
    Opinion delivered December 17, 1979
    (In Banc)
    [Rehearing denied January 21, 1980.]

      Spencer, Spencer & Shepherd, for appellant.

      "House, Holmes & Jewell, by: Charles R. Nestrud, for appellee.
   Darrell Hickman, Justice.

In 1973, the appellant bank obtained a $72,000.00 judgment against the appellee, Dorothy Mathews. When Mrs. Mathews’ house burned in 1978, the bank attempted to attach her portion of the insurance proceeds and apply them to the judgment debt. The Union County Chancellor held the money was a substitute for her homestead and, therefore, constitutionally exempt from execution by the bank.

On appeal the bank argues the chancellor’s ruling was against the preponderance of the evidence. To agree we would have to find the chancellor’s decision to be clearly erroneous. Rules of Civil Procedure, Rule 52. This we cannot do. We affirm the decree.

The essential facts are undisputed. The bank’s judgment against Mathews was for a business debt. On May 4, 1978, Mathews’ house was destroyed by fire. June 2nd, she was divorced and the chancery court ordered the insurance money on the house to be divided between her and her former husband. There was another party that had an interest in the proceeds who is not a party to this appeal. Neither is her former husband.

June 6th she obtained, from the insurance company, a $ 10,000.00 advance which she used to make a down payment on a new home. She obtained title to this home on June 9th. She had been told by the insurance company that her temporary living expenses at a motel were getting out of hand and she needed to either rent a house or an apartment. Obviously she decided to buy a house.

On June 16th the bank executed on both the lot on which the destroyed house had stood and her new home. She claimed both properties as her homestead and therefore exempt from execution. ARK. CONST, act. IX, § 3. The chancellor ordered that she had to select one piece of property or the other; she selected her new home. The lot was ordered sold and the bank bought it at a forced sale on July 14th.

July 20th the bank garnished the remaining insurance money which was being held by the insurance company because the exact amount of the loss had not been determined.

She claimed the money was exempt as substituted homestead property.

The matter was submitted to the chancellor on the pleadings and the testimony of an agent of the insurance company.

The chancellor found the insurance proceeds exempt from execution, quoting from the case of Obenshain v. Obenshain, 252 Ark. 701, 480 S.W. 2d 567 (1972):

When the owner of a homestead voluntarily sells the property, the proceeds of such sale are not exempt. On the other hand, when the property is subjected to a forced sale, the debtor’s share of the proceeds is exempt if he intends to use the money to acquire another homestead. [Emphasis added by the chancellor.]

The court added:

Mrs. Mathews did in fact use the $10,000.00 she received from the insurance company for the down payment on another home which she claims as her homestead. . . .

The appellant takes the position that Mrs. Mathews should not be allowed to claim both her new home and the proceeds from the old home and that she abandoned her homestead rights to the proceeds when she elected to claim her new home as exempt. Furthermore, appellant argues there was no evidence that she intended to use the money to purchase a new homestead or pay on her newly acquired home.

We disagree. There is no doubt insurance money or proceeds from a forced sale of a homestead are exempt from execution. Franklin Fire Ins. Co. v. Butts, 184 Ark. 263, 42 S.W. 2d 559 (1931). Furthermore, those proceeds are exempt from execution for a reasonable period of time to allow a person to invest in another homestead. Simms v. McFaddin, 217 Ark. 810, 233 S.W. 2d 375 (1950).

Mathews never had the money. She invested all she received in a new home and no doubt the chancellor found she intended to do likewise with the remainder. He emphasized language in the Obenshain case regarding intent and referred to the fact that she used the $10,000.00 she received to pay down on her new home.

She never abandoned her claim to the lot or the proceeds; she claimed both at every opportunity. While a person cannot have two homesteads at the same time, the law recognizes that a reasonable period of time must be given a person to invest the money in a new homestead. Simms v. McFaddin, supra.

This whole matter took place over a period of a few weeks during which the property was being divided by the divorce court, subject to attachment, or in the case of the insurance proceeds, subject to a garnishment action.

It is true that Mathews did not testify she intended to invest the remainder of the proceeds in her new home. However, we think that we can fairly conclude that the chancellor found that she intended to use the remainder of the insurance proceeds to pay on her new home. In order to make certain that the law is not perverted by the appellee, we will affirm the decision of the chancellor on the condition that the money is used by the appellee solely to pay for her new home. The chancery court will retain jurisdiction to insure that this happens.

Affirmed.

Harris, C.J., not participating.


text:
    John Edward SWINDLER v. STATE of Arkansas
    CR 79-116
    592 S.W. 2d 91
    Opinion delivered December 17, 1979
    (In Banc)

      Don Langston and John Settle, for appellant.

      Steve Clark, Atty. Gen., by: Nelwyn L. Davis, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

John Edward Swindler’s first trial for killing Randy Basnett, a Fort Smith police officer acting in the line of duty, was held in February, 1977. He was found guilty of capital murder and sentenced to die by electrocution. His trial was held in Fort Smith, Sebastian County. We reversed that conviction because the court failed to grant a change of venue and because the court failed to excuse three jurors. Swindler v. State, 264 Ark. 107, 569 S.W. 2d 120 (1978). The case was tried again but this time in Scott County, an adjacent county to the judicial district. Swindler was convicted the second time of capital murder and received the same sentence. This is an appeal from that conviction.

The shooting occurred when Swindler stopped off at Fort Smith, Arkansas apparently enroute to Kansas City from South Carolina. He pulled into the Road Runner Service Station just off Interstate 540, which bypasses downtown Fort Smith. It was about 5:00 p.m., Friday afternoon, September 2, 1976.

Basnett, a Fort Smith policeman who was on duty, had stopped to drink a coke with Carl Tinder at the Road Runner Service Station. Tinder ran the service station, which included a small convenience store. Basnett had in the past dropped by from time to time to drink coffee or a coke with Tinder. As they were talking at the counter, inside the station-store, Swindler drove up and parked his vehicle in the middle lane of three lanes under the station canopy. His vehicle was headed east, the driver’s side facing the front of the station-store. Swindler went in and asked for directions to Kansas City. Basnett and Tinder told him how to proceed.

Swindler went back outside, raised the hood on his vehicle and was looking after the vehicle when Basnett left the station-store. Basnett got in his police vehicle, which was parked nearby, and drove around to the other side of the station, parking his vehicle to the rear of Swindler’s. Apparently Basnett made a radio call and then walked up to Swindler.

Two witnesses testified that Swindler shot and killed Basnett as the officer stood at the car door on the driver’s side. Basnett had not pulled his gun until after he was shot. Tinder was one of these eyewitnesses; he was inside the store; the other witness was a man named Steve Cardwell who said he was outside the station.

Basnett was able to fire five or six times through the car door before he died. Basnett fell back, fatally wounded. Swindler, although he was injured, was able to drive off. He was arrested shortly thereafter. The State Police District Headquarters was just across the street from the station.

Four guns and a rifle scope, as well as some ammunition, were found near the vehicle: a .38 Colt revolver, a .38 Smith and Wesson revolver, a 9 shot .22 automatic pistol, all fully loaded, and a .22 caliber rifle containing three live rounds. Over 200 rounds of live ammunition for the rifle were found in or near the vehicle. This evidence was introduced over Swindler’s objections.

Swindler’s version as to the actual shooting differed. He said he saw the policeman get in his car and thought he was leaving. Swindler went back to seeing after his car and had just gotten into it when he heard a “cock,” as a hammer being cocked on a pistol, heard something said to the effect, “damn hippie,” and was shot. He said he had a pistol in his belt and another in his pocket and, just as he was laying down the pistol he had taken from his belt, this happened; he turned instinctively and the gun went off. He said he did not know it was a policeman until after he fired. He claimed he was shot first.

He remembered seeing Tinder inside the station-store. He recalled after the shooting seeing some children about on bicycles. He did not recall seeing the other eyewitnes's, Cardwell.

The first trial was preceded by news coverage of the killing, of the funeral of the police officer, and of Swindler’s past. The coverage was substantial. In some instances the stories contained material that could and, in fact did, result in prejudice to Swindler’s right to a fair trial at that time in Sebastian County. The extent of that coverage was discussed at length in our opinion deciding the first appeal. Chief Justice Carleton Harris, in a concurring opinion, especially addressed the problem created by the news coverage of the killing and its relation to Swindler’s first trial.

Although the appellant in this case argues some of the same issues regarding a prejudiced community and jury, there is no evidence at all in this record of unfavorable pretrial publicity. The record we have regarding those arguments consists solely of the voir dire examination of veniremen (prospective jurors) from Scott County.

We have examined the record not only as to those allegations of error raised on appeal but also other errors as we do in such cases. Rules of Crim. Proc. Rule 36.24. We find no prejudicial error was committed and affirm the judgment and sentence of the trial court.

The first three arguments of error are related and will be discussed together.

I.
The trial court erred in denying the defendant’s motions for a mistrial and motions for a second change of venue when it was shown during voir dire of the jury that a fair and impartial jury could not be selected to try this case.
II.
The trial court erred in overruling the defendant’s motions to declare Arkansas’ venue statutes (Ark. Stat. Ann. Sections 43-1507 and 1518) which permits only one change of venue and Article 2, Section 10 of the Arkansas Constitution which permits a change of venue only to another county in the judicial circuit unconstitutional in violation of the fair trial and due process clauses of the United States Constitution and in refusing to change the venue the second time to a county where the defendant can receive a fair and impartial trial.
III.
The trial court erred in refusing to grant the defendant’s motion to excuse jurors for cause (either as a group or singly) and requiring the defendant to exhaust his preemptory challenges to excuse them and to take several jurors who should have been excused for trial.

The United States and Arkansas constitutions entitle a defendant to a fair trial. If, because of pretrial publicity, an impartial jury cannot be seated to try a defendant, his right to a fair trial is violated. Irvin v. Dowd, 366 U.S. 717 (1961); Swindler v. State, supra; Ruiz & Van Denton v. State, 265 Ark. 875, 582 S.W. 2d 341 (1979).

Swindler’s first argument is that, in Scott County, he could not be tried by an impartial jury.

While Swindler’s counsel moved six times for a mistrial or change of venue during the 5 days’ voir dire examination, no evidence at all was offered of pretrial publicity. No affidavits or testimony, showing pretrial publicity or ill feelings in the community as a result of the killing, was offered, as they had been in Swindler v. State, supra or Ruiz & Van Denton v. State, supra.

Our law provides affidavits or sworn testimony must be offered to support a motion for a change of venue. Ark. Stat. Ann. § 43-1502.

The only evidence we have of prejudicial pretrial publicity is the voir dire testimony of the prospective jurors as 120 jurors were examined. Swindler had not exhausted his preemptory challenges until after the 11th juror had been selected.

The trial court, no doubt mindful of our decision in the first Swindler case, was careful and took pains in selecting this jury.

The fact 120 were examined is not, standing alone, enough to conclude a fair and impartial panel could not be seated.

The judge excluded over 79 people for cause. The jurors seated, while in some instances acknowledging that they knew generally of the crime, Swindler, or the first trial, all said they could set aside what they had heard and try Swindler on the facts and according to the law.

The test of whether pretrial publicity has prejudiced a juror was set forth in Irvin v. Dowd, supra. It reads:

It is not required that the jurors be totally ignorant of the facts involved ... To hold that the mere existence of any preconceived notion as to the guilt or innocence of the accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented at court. 366 U.S. at 722-723.

Deciding to seat a juror challenged for bias is a discretionary matter with the trial judge. To reject a potential juror, the judge must be satisfied that the juror’s state of mind is such that he cannot render an impartial judgment and that seating him will result in substantial prejudice to the rights of the defendant. Jones v. State, 264 Ark. 935, 576 S.W. 2d 198 (1979).

Swindler’s attorney did not move to strike 9 of the jurors selected. One was overseas at the time of the killing; another had read or heard nothing of the case, except from her husband; one knew nothing of the facts but only vaguely recalled “something” about it; another had read, some three weeks before this trial, the local paper in Scott County about the killing; one recalled some news accounts and probably decided Swindler was guilty because he had been found guilty before; one had seen a “little bit” on T. V. and read in the local paper that a Fort Smith policeman was shot. Another had heard nothing and knew nothing. All of these were selected with no objection. The last juror selected, who knew nothing, was selected after the defense had exercised all preemptory challenges.

The three jurors selected, that the defense challenged for cause, were all selected when the defense had remaining a preemptory challenge. These three did admit to having more knowledge than the others.

Thurman Jones had read the Fort Smith newspapers and seen the “case on T. V.” He also read that Swindler was accused of killing two others in South Carolina. He had assumed Swindler was guilty since he had been convicted. Jones was questioned extensively. He acknowledged he could set aside all his ideas and information and give Swindler a fair trial.

Milton Staggs had read and heard some about the case and had formed a “little bit” of an opinion. He said he would have no difficulty in setting aside any information or opinion he had formed.

Henry Sunderman had read and heard of the case. He declared he had no opinion about the case. Since a jury had convicted Swindler before, he had to conclude Swindler might well be guilty. But he said he could do his duty in this case and disregard any information he had about the case.

The judge, in his discretion, decided these jurors could serve. We cannot say the judge clearly abused his discretion in selecting these jurors.

There is no comparison at all between this case and the first Swindler case and the Ruiz & Van Denton case. The appellant cites as controlling the cases of Irvin v. Dowd, supra, and Sheppard v. Maxwell, 384 U.S. 333 (1966), the case involving Dr. Sam Sheppard. In both Irvin and Sheppard there was strong evidence of pretrial publicity that prevented the selection of a fair jury. As we indicated there was no such evidence offered in this case. The only real argument the appellant has is that over 80% of those questioned were excused for cause.

We have independently examined the voir dire, as we are required to do in such cases. We find that the facts in Swindler’s second trial regarding the composition of the jury are not unlike those that were found to exist in the case of Murphy v. Florida, 421 U.S. 794 (1975). In the Murphy case the Court also found that a considerable number of jurors knew of Murphy’s crimes and his past crimes. However, the Court did not find that such information alone required a reversal of Murphy’s conviction. The Court compared the difference between Murphy’s case and that of Irvin v. Dowd, supra. The Court stated:

The voir dire in this case [Murphy’s] indicates no such hostility to petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid aside. . . .

Applying the tests we have recited, we must conclude that the appellant has not demonstrated such prejudice in the community nor bias on the part of any juror that would require a new trial.

The second argument is meritless. The Arkansas law permitting only one change of venue, and that to a county within the judicial circuit, is not on its face unconstitutional. The case of Irvin v. Dowd, supra, does not support appellant’s argument. The Court in Irvin ordered a trial in another county, contra to state law, because the trial judge refused a change of venue simply because state law forbade it. Also, the record in the Irvin case, like that in Swindler and Ruiz & Van Denton, was replete with evidence of pretrial publicity and a change of venue was obviously necessary.

It is not necessary for us to decide whether these venue laws can result in a denial of a right to a fair trial and due process of law. The question is, could Swindler receive a fair trial, by an impartial jury, in Scott County? We conclude he could.

The third argument has no merit. The single fact that over 80% of the jurors questioned were excused for cause is not sufficient to find that a mistrial should have been granted or change of venue ordered. That is only one consideration. The judge and lawyers spent 5 days selecting a jury. Except for the three jurors objected to, it can hardly be argued the jury was unacceptable. The fact the defense had to use its preemptory challenges (as did the State) is no reason to find a jury could not be seated.

IV.
The trial court erred in denying the defendant’s motion in limine to prohibit the questions of the veniremen on voir dire about their feelings concerning the death penalty.
V.
The trial court erred in excusing for cause any or all of the four veniremen who expressed opposition to the imposition of the death penalty.
These two points were argued as one by the appellant.

The appellant filed a motion in limine, which was denied, asking that the State not be allowed to ask prospective jurors whether they opposed the death penalty. Without citing any authority, it is argued that such a procedure denies a defendant a jury composed of a cross-section of the community and, therefore, violates the fair trial and due process requirements of the United States and Arkansas constitutions. This argument does not have any merit as we will explain in our answer to the fifth assignment of error.

The fifth allegation of error is that four prospective jurors were improperly excused because they expressed opposition to the death penalty. In the case of Witherspoon v. Illinois, 391 U.S. 510 (1968), the practice of permitting a prosecuting attorney to qualify a jury for the death penalty was not prohibited; what was prohibited by Witherspoon is the exclusion of ajuror who is not irrevocably opposed to the death penalty.

Of the four prospective jurors excluded by the court on the motion of the State, three of them stated without equivocation that they opposed the death penalty under any circumstances. The other witness did make a statement at one point that he did not believe “he could impose the death penalty.” That witness, Murl Carmack, testified as follows:

Q. Let me ask you this. Do you think the death penalty is proper punishment for some crimes?
A. I wouldn’t think so.
Q. Do you believe in the death penalty?
A. Not so much.
Q. Do you understand that under the law of Arkansas that it is the jury that finds whether a person is guilty or not guilty, and then if the jury finds the defendant guilty then the jury actually sets the punishment, that is not done by the Judge. Now, if you were on this jury, and you listened to all the evidence, could you, under any circumstances, vote for the death penalty?
A. I wouldn’t want to.
Q. I understand you might not want to, but you know it is the law of Arkansas, and if you listened to the evidence and you found that under our law this was a proper case for the death penalty, then could you follow Arkansas law, or would you stick to your own personal feelings?
A. Well, now I would stick to what I believe in.
Q. So are you telling me that no matter what the facts are, or what the law is, that you would not vote for the death penalty?
A. No, I don’t think I would.
Q. Okay, now you say you don’t think you would. Can you tell me for sure that you would or would not?
A. Well, I wouldn’t then, I will put it that way. [Emphasis added.]
Q. No matter wh at the facts were, or what the law was, you would not vote for the death penalty?
A. No, I don’t believe I could, and then have a clear conscience.
THE COURT: No, what he has asked you is, and I want to ask you, too, to be sure that I understand. Is that feeling that you have or your belief so fixed and strong that regardless of what the facts might be, regardless of how bad they might be, or how aggravating they might be, in any case, that under no circumstances could you consider imposing the death penalty?
A. I wouldn’t. [Emphasis added.]
THE COURT: In any case?
A. I don’t believe I would.
DEFENSE ATTORNEY: I have no questions, your Honor.
THE COURT: All right, he will be excused for cause.

We are satisfied that this juror was irrevocably opposed to the death penalty and the court was not wrong in excluding the juror for that reason. See McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979).

VI.
The trial court erred in overruling the defendant’s motion to reduce the charge on the grounds that the Arkansas death penalty is unconstitutional.

The appellant concedes that we have consistently ruled this point to be without merit, beginning with Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), and in every case thereafter where the question has been raised.

VII.
The trial court erred in denying the defendant’s motion to reduce the charge on the grounds that causing the death of a police officer in the line of duty should not constitute the offense of capital murder.

The appellant concedes that we held this argument to be without merit in the first appeal. Swindler v. State, supra.

VIII.
The trial court erred in overruling the defendant’s motion to reduce the penalty on the grounds that death by electrocution is cruel and unusual punishment.

The appellant concedes that we held this argument to be without merit in the case of Ruiz & Van Denton v. State, supra.

IX.
The trial court erred in permitting in evidence any weapons other than the alleged murder weapon over the defendant’s objection on relevancy grounds.

The appellant concedes that we held this argument to be without merit in the first appeal. Swindler v. State, supra.

X.
The trial court erred in permitting in evidence in rebuttal, testimony and exhibits about highway signs along Interstates 40 and 540 over the defendant’s objections on relevancy grounds.

The appellant argues that the State simply called two policemen before the jury to prejudice them by showing that policemen were interested in the case so the defendant would receive the death penalty. The State argues that the testimony of the policemen regarding the signs was used to impeach Swindler’s testimony that he was looking for Highway 71 to go to Kansas City. The officers’ testimony indicated that there were two exits, before the exit Swindler took to the service station, which were clearly marked “Highway 71 North,” thereby impeaching to some degree Swindler’s testimony that he was looking for a way to reach Highway 71. We find no merit at all to the appellant’s conclusion that the officers were used to prejudice the jury. Certainly we find no prejudicial error resulting from the testimony.

XI.
The trial court erred in denying the defendant’s motions for a directed verdict and to reduce the charge at the close of the state’s case and when both sides rested.

Essentially this argument was answered in Swindler v. State, supra. We view the evidence on appeal most favorable to the appellee. Viewed in that light there was substantial evidence of premeditation and deliberation. The four loaded guns were enough circumstantial evidence for the jury to conclude that he intended to use them; this, together with the two eyewitnesses’ testimony is substantial evidence of the elements of the crime of capital felony murder.

XII.
The trial court erred in denying the defendant’s motion for a continuance of the sentencing stage of the trial so that the defendant could present an expert witness who was prepared to testify that the cruel nature of death by electrocution and possibility of rehabilitation are mitigating circumstances.

Whether a trial court grants or denies a continuance is a matter of discretion and we only set aside a ruling if we find the court abuses that discretion. Russell & Davis v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977). We find no such abuse in this case. This argument is misplaced because whether death by electrocution is cruel and unusual punishment is a question of law and not of fact; nor is it a circumstance to be considered when a jury deliberates on mitigating circumstances . It is not up to the jury to decide how a defendant dies. Death by electrocution has been decided by the General Assembly as the means of execution in such cases. Ark. Stat. Ann. § 43-2611 (Repl. 1977).

XIII.
The trial court erred in permitting in evidence over the defendant’s objection State Exhibit No. 55 which purported to reflect that the defendant had been convicted of armed robbery and in overruling the defendant’s objection to Sentencing Instruction (a) which permitted the jury to find that the defendant committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person.

We ruled this evidence admissible on the first appeal. Swindler v. State, supra.

XIV.
The trial court erred in overruling the defendant’s objection to Sentencing Instruction (B), which permitted the jury to find that the defendant in the commission of the capital murder, beyond a reasonable doubt, knowingly created a great risk of death to a person other than the victim.

We ruled against the appellant on this same issue in the first Swindler case. However, it is argued that the testimony was substantially different in this case. Swindler’s attorney cross-examined in detail the witness Tinder who was inside the service station at the time of the killing. He argues that it was impossible for Swindler to have intended to create a great risk of death to other people. We disagree. The shots were fired in the direction of the station-store front. The evidence is that the officer was struck twice and that Swindler fired twice, but that does not mean that Swindler had any regard for other people in the vicinity. According to the evidence there were at least three people other than the officer in the vicinity; Tinder, Cardwell and Mrs. Cardwell. Swindler could not even swear that he only shot twice; he could not swear that he knew he shot a policeman until after it was done. Tinder was standing behind the counter inside the store front that was virtually all glass. The fact that there may have been a few gasoline pumps or stanchions between Swindler and the store front begs the question. The question is, was there sufficient evidence to support a finding that Swindler knowingly created a great risk of death to other people. There was ample evidence Swindler had no regard for the lives of others in the vicinity. Such evidence was in Tinder’s testimony, Cardwell’s testimony, all those loaded guns, and even Swindler’s own testimony.

XV.
The trial court erred in permitting in evidence over the defendant’s objections State’s Exhibits Nos. 56 and 57 which were a computer printout message, complaint and warrant for defendant’s arrest for unlawful flight to avoid prosecution and in overruling the defendant’s objection to Sentencing Instruction (D) which permitted the jury to find as an aggravating circumstance that the capital murder was committed for the purpose of avoiding a lawful arrest or effecting an escape from custody.

We ruled against the appellant’s argument on this issue in the first appeal. Swindler v. State, supra.

XVI.
The death verdict was returned on the basis of passion and prejudice by the jury and when this court compares death penalty cases, the death verdict should be set aside and the defendant be sentenced to life without parole.

We find no evidence that the jury’s verdict was based on passion or prejudice. We adhere to the majority opinion in Collins v. State, supra, which says that we will compare death penalty cases and that we can reduce a sentence if we find it was the result of passion and prejudice. We have reduced one death sentence to life without parole. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977). Comparing this killing to others that we have considered, there is hardly any room for argument that the appellant has any grounds for asking for leniency.

In conclusion, Swindler received a fair trial. Therefore, the judgment and sentence in this case are affirmed.

Affirmed.

Harris, C.J., not participating.

       The Court noted in Irvin that the state supreme court had held that the Indiana statute could be circumvented if a defendant could not get a fair trial on one change of venue. Irvin v. Dowd, supra, at 721.


author: John I. Purtle, Associate Justice.

text:
    Charles PATTERSON v. STATE of Arkansas
    CR 79-187
    591 S.W. 2d 356
    Opinion delivered December 17, 1979
    (In Banc)
    [Rehearing denied January 21, 1980.]

      William R. Wilson, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Robert J. DeGostin, Jr., Asst. Atty. Gen., for appellee.
   John I. Purtle, Associate Justice.

We granted appellant’s petition for certiorari in this case pursuant to Rule 29(6)(a) and (c). The court of appeals, in a split decision, affirmed in part and reversed in part. In granting certiorari we will consider this case as if were filed in this Court from the beginning. However, this does not imply we could not take jurisdiction of less than the entire case. Rule 29 (1) designates matters which should have been filed in this Court originally and are included by reference in the provisions of Rule 29 (6) (a). Constitutional and statutory interpretation arguments are interwoven throughout the appeal and it would not be practical to separate them for purpose of consideration by this Court.

The original appeal was from a jury conviction of appellant in the Lawrence County Circuit Court. The conviction was on one count of conspiracy to commit bribery and six counts of bribery. Appellant was sentenced to 7 one-year periods of confinement which were to run consecutively.

On appeal it is urged that the court committed many prejudicial errors. One alleged error is that it was prejudicial to force appellant to trial on a 22-count information filed by the prosecuting attorney which counts were identical to two indictments previously returned by the grand jury. These grand jury indictments were still pending at the time of the trial. The other alleged errors concern interpretation of statutes and rules of evidence. Due to the complexity of the grounds urged for reversal, it is deemed appropriate to deal with them separately in order of the argument. We find prejudicial error and remand for a new trial.

The facts of this case reveal appellant was named in three separate indictments by the Independence County Grand Jury on October 20, 1977. Two of the indictments charged appellant with bribery and conspiracy to commit, bribery. Several defense motions were filed prior to November 18,1977, when appellant was again called before the grand jury. When he appeared before the same grand jury, which had previously indicted him, he was offered a form of immunity. The circuit judge had signed some immunity forms with the name of the witness left blank. In this case the prosecuting attorney wrote appellant’s name on one of the improper blank forms which had been signed by the judge. The judge was not in the county on this date. On advice of counsel, appellant exercised his Fifth Amendment rights and refused to testify. The next day appellant filed a motion attacking the entire grand jury proceedings. A conference was held in Jackson County on July 21, 1978, at which time the court granted a defense motion to change the venue to Lawrence County and scheduled the trial to commence on August 21, 1978. A pretrial hearing was held in Independence County on August 11, 1978, at which time the appellant was arrested as he entered the courthouse. The arrest was based upon an information which had been filed on August 8, 1978. The 22-count information contained the identical allegations included in two of the earlier indictments. Both oral and written objections were filed attacking the information. Appellant specifically requested the indictments be dismissed in view of the subsequent information filed on the same matters.

The trial commenced before a jury in Lawrence County on August 21, 1978. The appellant insisted the indictment should be dismissed but his motions and request were denied. The last motion to quash the indictments was made orally during the trial at the time appellant was seated in the witness stand. The court again rejected the request to quash the grand jury indictment and appellant elected not to testify. There had been no request that the third indictment be quashed, and we are unaware of the charges contained in that indictment. During the course of the trial testimony of an alleged co-conspirator was presented, over appellant’s objection and request for a limiting instruction. The court declined to give a limiting instruction at the time the testimony was given but indicated it might be given later. At the close of the trial the court declined to give a limiting instruction apparently on the theory that the co-conspirator’s testimony had been properly connected by evidence independent of the testimony of the co-conspirator. Also, a mistrial was denied when one witness testified appellant had tried to get him to commit perjury in another case. The court instructed the jury to disregard this testimony. Another witness gave unresponsive testimony to the effect that he was scared to tell the grand jury the truth because he feared his family might be harmed. There was no other evidence indicating a basis for such fear nor did the witness furnish any supporting testimony upon which the fear was alleged to be predicated. Another motion for mistrial was denied by the court. A former sheriff testified he had made an investigation into the charges in this case and decided they were true. A request for a mistrial was again denied and the jury was again told to disregard this opinion evidence. One Buckshot Nicholson identified a written statement he had given the prosecutor three days prior to the trial. This statement was his version of some of the facts to which he was testifying at the trial. The written statement was admitted into evidence and submitted to the jury over the objection of appellant.

A bootlegger testified she had a telephone conversation with appellant and the conversation was recorded. Her telephone was tapped by the state with her consent and the recorded conversation was introduced into evidence over the objection of appellant. This same bootlegger was alleged to be a co-conspirator. During the closing summation by the prosecutor he made the statement that he would like to know what the appellant had to say about it. (Appellant had not taken the stand.) Also, he argued in his rebuttal that if the jury only fined appellant his father would pay it for him. The trial court had, on motion of the appellant, directed him not to discuss the penalty because it had not been discussed in his summation nor had the appellant’s attorney discussed it. Again the motion for mistrial was denied. Appellant was convicted of seven of the 22 counts and sentenced to 7 one-year sentences, to run consecutively.

I.

THE TRIAL COURT ERRED IN FORCING THE DEFENDANT TO TRIAL ON THE INFORMATION WITHOUT FIRST QUASHING THE TWO PRIOR INDICTMENTS ON THE IDENTICAL ALLEGATIONS.

We cannot agree with the state’s contention that this argument is totally absurd, frivolous, and an affront to the intelligence of anyone capable of reading the record and statute. Ark. Stat. Ann. § 43-1031 (Repl. 1977) states:

If there shall be, at any time, pending against the same defendant, two (2) indictments for the same offense, or two (2) indictments for the same matter, although charged as different offenses, the indictment first found shall be deemed to be suspended by such second indictment, and shall be quashed.

As we read the statute, it requires the first of duplicate indictments to be quashed. Appellant’s motion to quash these two prior identical indictments was denied up through the beginning of appellant’s defense at the trial. We have held this statute is not self-executing. In State v. Dimler, 251 Ark. 753, 475 S.W. 2d 152 (1972), we stated:

. . . Also, the statute cited by appellant is not self-executing, i.e., the first indictment is not automatically suspended or superseded when a second information is filed, but only after an order has been entered. *** It is thus apparent that the court must enter an order quashing the first indictment or information before the provisions of the statute become effective; indeed, the statute itself uses the language “shall be quashed”, and even then, such action would have to be taken before a trial of the defendant on information. . . .

It may well be that appellant could have successfully pleaded former jeopardy if he were tried and convicted on the still pending grand jury indictments. However, he should not be put to such inconvenience and expense in view of the plain meaning of the statute. Since the statute is mandatory and in view of our prior holding in Dimler, supra, we find the court erroneously failed to quash the two pending grand jury indictments upon motion of appellant.

II.

THE TRIAL COURT ERRED IN REPEATEDLY REFUSING TO GIVE A LIMITING INSTRUCTION WHEN THE PROSECUTION OFFERED INTO EVIDENCE, FROM THE OUTSET OF THE TRIAL, STATEMENTS OF ALLEGED CO-CONSPIRATORS.

Statements of alleged co-conspirators are inadmissible as hearsay unless they are vicarious admissions. The statements must be connected by other evidence which establishes the conspiracy independent of the statement. The existence of the conspiracy must be independently proved before the jury is allowed to consider statements of co-conspirators. Glasser v. United States, 315 U.S. 60 (1941). The trial court has discretion to vary the order of proof. Dyas v. State, 260 Ark. 303, 539 S.W. 2d 251 (1976). In Dyas we stated:

We have held that it is within the discretion of the trial court to permit the statement of an alleged conspiracy to be introduced at the prosecution of a fellow conspirator before evidence tending to prove the conspiracy has been introduced. (Cites omitted.) Here, as in Easter, it was later in the testimony of the same witness that the evidence tending to establish the conspiracy was introduced and it was a matter within the sound judicial discretion of the court to control the order in which the testimony should be adduced.

Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, Rule 104 (b) (Repl. 1979), states:

Relevancy Conditioned on Fact. Whenever the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or in the court’s discretion subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

We do not find that we have had occasion to interpret Rule 104. The plain meaning of this statutory rule indicates the trial court has discretion in the order of admitting testimony of a co-conspirator. Uniform Rule of Evidence 105 states:

Whenever evidence which is admissible as to one (1) party or for one (1) purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Thus it would appear in reading both riiles that it was the duty of the court to grant a limiting instruction. However, the court had discretion as to the order of admissibility. The 8th Circuit Court of Appeals considered a similar situation in United States v. Bell, 573 F. 2d 1040 (8 Cir.) (1978), and therein stated:

. . . caution the parties (a) that the statement is being admitted subject to defendant’s objection; (b) that the government will be required to prove by a preponderance of the independent evidence that the statement was made by a co-conspirator during the course and in furtherance of the conspiracy; (c) that at the conclusion of all the evidence the court will make an explicit determination for the record regarding the admissibility of the statement; and (d) that if the court determines that the government has failed to carry the burden delineated in (b) above, the court will, upon appropriate motion, declare a mistrial, unless a cautionary instruction to the jury to disregard the statement would suffice to cure any prejudice. . . .

Although AMCI 201 was not in effect at the time of the trial, it essentially sets out what we believe to be the best rule in handling the admission of testimony of co-conspirators. In view of the requirement that the jury must find beyond a reasonable doubt that the conspiracy did in fact exist, it appears a limiting instruction should have been given at some time during the trial. Of course, this question will not arise at the retrial of this case because AMCI 201 is now available for use in such cases and should be given, at sometime during the proceeding, upon request by the defendant.

III.

THE TRIAL COURT ERRE D IN FAILIN G TO GRANT A MISTRIAL WHEN THE PROSECUTING ATTORNEY ELICITED TESTIMONY FROM A PROSECUTION WITNESS TO THE EFFECT THAT APPELLANT HAD SUBORNED PERJURY IN A PREVIOUS, UNCONNECTED CASE.

During the state’s presentation of the case in chief, testimony of a police officer was elicited which indicated appellant had attempted to persuade the officer to commit perjury in an earlier unconnected case. Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979), states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Both parties agree this testimony was improper. We agree it was improper and obviously the trial court agreed in view of the fact that the jury was instructed to disregard this testimony. Obviously, this will not happen at the next trial. There was no attempt to bring the testimony in under any exception to Rule 404 (b). Aside from the rule, we have many times held evidence of another crime, independent and unconnected to the one under consideration, is inadmissible. It is usually considered prejudicial error. Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954); Rios v. State, 262 Ark. 407, 557 S.W. 2d 198 (1977); Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472 (1968); and Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979).

IV.

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION FOR A MISTRIAL WHEN A PROSECUTION WITNESS GAVE UNSOLICITED TESTIMONY TO THE EFFECT THAT THE APPELLANT WAS A DANGEROUS MAN.

One witness made a voluntary and unsolicited statement to the effect that the reason he failed to tell the grand jury the truth was because he feared for the safety of his family. At this point the prior inconsistent statement had not been mentioned. This was the only evidence in the record indicating appellant was a dangerous man. After objection by appellant’s counsel the court permitted the witness to repeat the same statement again. This witness may have subsequently had an opportunity to explain why his testimony was not thg same as he had given before the grand jury but it was improper to permit him to volunteer this information in advance of opening the door. Although it does not appear this precise question has been presented to us in any previous case, we feel the proper rule would be to declare such unresponsive testimony to be error if presented without justification as was done in this case. This, too, will not likely reoccur in the new trial.

V.

THE TRIAL COURT ERRED IN OVERRULING THE DEFENSE MOTION FOR A MISTRIAL AFTER THE PROSECUTING ATTORNEY ELICITED A STATEMENT FROM A DEFENSE WITNESS WHICH, IN EFFECT, WAS AN OPINION BY THE WITNESS THAT THE APPELLANT WAS GUILTY AS CHARGED.

The witness, a former sheriff, in effect, stated after he had made his own investigation of the allegations in the indictment and information he had concluded they were true. The only logical conclusion to be reached from this testimony is that the witness believed appellant was guilty. The court admonished the jury again to not consider this evidence. A mistrial was requested and refused both before and after the admonition. We consider this opinion evidence in light of Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, Rule 704 (Repl. 1979), which states:

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

The testimony of this witness on this point was not otherwise admissible. It was not admissible for any reason at all; therefore, it constituted error. This statement was not embraced within any response to a prior question. Whether appellant was guilty or innocent was a matter entirely within the province of the jury and it is improper for the witness, or even the court, to express an opinion as to the guilt or innocence of appellant.

VI.

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE A SIGNED STATEMENT OF A PROSECUTION WITNESS, WHEN THE STATEMENT WAS MADE ON SATURDAY, AUGUST 19, 1978, JUST THREE DAYS BEFORE THE TRIAL COMMENCED.

The witness had made a written statement at the request of the prosecuting attorney two or three days before the trial. This statement was introduced into evidence and copies furnished to the jury over the objection of the appellant. The state offered it for the purpose of proving the guilt or innocence of appellant.

Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, Rule 801 (c) (Repl. 1979), defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. This statement was expressly made for the purpose of proving the truth of the matter asserted and obviously was not made while testifying at the trial or hearing. We cannot fit the statement into any of the exceptions to the hearsay rule. The statement was apparently worded by the prosecuting attorney and signed by the witness as reflected by the response of the witness to a question about the statement when he replied:

“ No, I didn’t word it just that way, but that is the way it is.”

If such statement were allowed, the prosecuting attorney could round up all his witnesses on the eve of a trial and prepare a statement for each to sign and hand the statements to the jury thereby emphasizing the evidence and testimony in a light most favorable to the state. The defense would, no doubt, adopt the same procedure if such evidence were held admissible. The situation could develop whereby the jury would decide the case on a series of written statements presented to them at the time of the trial. We think the case of Brown v. State, 262 Ark. 298, 556 S.W. 2d 418 (1977), controls in this case and the statement was pure hearsay. It should not have been admitted into evidence.

VII.

THE TRIAL COURT ERRED IN ADMITTING A TAPE RECORDED CONVERSATION BETWEEN APPELLANT AND PROSECUTION WITNESS ROBERT A. CLARK.

The state had tapped the witness’s telephone with her consent. Thereafter she engaged the appellant in a conversation which was recorded. The tape of this conversation was presented to the trial jury over the objection of the appellant, who had not consented to the tap and in fact did not know the conversation was being recorded.

The Federal Omnibus Crime Control Act, 18 U.S.C. §2511 (2) (c), provides intercepted telephone conversations may be used provided one of the parties to the conversation consents thereto. Appellant argues this witness did not give true consent because the state promised she would be “protected.” Also, appellant claims this was a violation of the Fourth Amendment to the United States Constitution. We disagree with appellant on these contentions. It was not shown that the witness cooperated and consented to the tap because of duress or threats of any nature. She stated she voluntarily consented to the conversation being recorded. A party to a conversation who mistakenly believes the other party will keep the conversation in secret is not prejudiced by the fact that such confidence is betrayed. United States v. White, 401 U.S. 745 (1971); Kerr v. State, 256 Ark. 738, 512 S.W. 2d 13 (1974). In view of the facts of this case we think the intercepted conversation was properly received in evidence.

VIII.

THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S MOTION FOR A MISTRIAL AFTER THE PROSECUTION COMMENTED, IN CLOSING ARGUMENT, ON APPELLANT’S FAILURE TO TESTIFY IN HIS OWN BEHALF.

The statement by the prosecuting attorney was at least subject to misinterpretation by the jury even if it were not intended as a remark referring to appellant’s failure to testify. We need not cite authorities for the proposition that the prosecuting attorney cannot call the attention of the jury to the fact that an accused has failed to testify. Since there will be a new trial, this statement will not be repeated in its present context.

IX.

THE COURT ERRED IN FAILING TO GRANT APPELLANT’S MOTION FOR A MISTRIAL AFTER THE PROSECUTING ATTORNEY DISCUSSED PUNISHMENT IN HIS REBUTTAL CLOSING ARGUMENT IN DIRECT VIOLATION OF THE TRIAL COURT’S ORDER THAT HE NOT DO SO.

The prosecuting attorney argued about the penalty to be imposed although he had been instructed not to do so by the trial court. This instruction resulted because neither the state nor appellant’s counsel argued the penalty in their closing summation. The court again admonished the jury to not consider this statement and denied the motion for a new trial. This is another error not likely to occur at the future trial.

X.

INTENTIONAL VIOLATIONS OF APPELLANT’S DUE PROCESS RIGHTS CREATED MOST OF THE PREJUDICIAL ERRORS IN THIS CASE; THEREFORE RETRIAL WOULD CONSTITUTE A VIOLATION OF DOUBLE JEOPARDY.

We need not cite authority for the rule that a retrial is not barred by reversal of a conviction because of prejudicial error. Appellant recognizes the general rule but contends an exception exists in a case where the prosecution creates the errors through bad faith or harassment. In other words, the state should not be allowed to create a mistrial for the purpose of getting another whack at the accused. Neither should the state be permitted to harass and intimidate an individual by intentionally causing him to be tried more than once.

Although the errors were numerous and sometimes appeared not to be unintentional, we cannot say that the prosecution acted in bad fath or with intent to harass the appellant by intentionally causing a new trial. This was obviously a trial where both counsel proceeded with vigor. However, the admission into evidence of the written statement of the witness Buckshot Nicholson constituted prejudicial error. Since we are considering this case as if the appeal were filed here, the case is reversed and remanded to the circuit court for a new trial.

Reversed and remanded.

Harris, C.J., not participating.

Fogleman, J., would affirm opinion of the court of appeals.


author: John D. Eldridge, Special Justice.

text:
    WINSLOW DRUMMOND v. Lou A. DRUMMOND
    79-83
    590 S.W. 2d 658
    Opinion delivered December 17, 1979

      Dale Price, for appellant.

      Ben Rowland, of Rowland & Templeton, for appellee.
   John D. Eldridge, Special Justice.

The parties were divorced on May 9,1973 by a decree of the Pulaski Chancery Court. The Court, awarded custody of -their three minor children to the- Appellee and directed Appellant to pay alimony and child support.

Subsequently, on June 7, 1978, the Appellant filed a petition in the Pulaski Chancery Court seeking the custody of the children and an abatement of the obligation to pay child support and alimony. The petition also sought to relieve Appellant of the duty to maintain life insurance policies for the benefit of Appellee.

After pretrial procedures and hearing the trial court ordered a change in the custody of the children from the Appellee to the Appellant, but refused to terminate or modify the alimony payments or to relieve Appellant of his duty to make the life insurance premium payments. The insurance obligation was deemed to be contractual and not subject to change by the court. From this decision Appellant has appealed. The Appellee has not appealed from the order divesting her of the children’s custody.

At the time of the divorce in 1973, the parties entered into a complete property settlement and support agreement which was incorporated into the decree. The provisions pertinent to this appeal are as follows: The Appellee was to have custody of the three children, Judith, Kathryn and Winslow, who were at that time age 11, 9 and 6V2 years, respectively. Appellant was directed to pay Appellee $225.00 per month per child until the child reached age 21 years. The decree further provided that as each child reached the age of 21 the amount payable to Appellee as alimony for her support should be increased by $50.00 per month. Alimony was fixed at the sum of $600.00 per month. Both the amount of alimony and the child support payments were to be increased on January 1st of each year to correspond with the increase, if any, in the Cost of Living Index of the Bureau of Labor Statistics. Appellant was to create and convey to a trust three life insurance policies on his life with his wife and children as beneficiaries and to maintain them in force.

The Agreement was expressly provided to be non-contractual with respect to the provisions for alimony and child support and both parties reserved the right to apply to the court having jurisdiction for such revision of alimony and child support as future changes in the parties’ circumstances might justify. '

The testimony and the answers to requests for admissions given by Appellee establish that following the divorce she had engaged in sexual relations with two married men on several occasions. It was admitted that some of these episodes occurred in her residence in the absence of the children. Finally, on the nights of June 3-4 and June 6-7, 1978, Appellee permitted one of the men to spend the night with her in her home while the children were there. One of the children informed the Appellant of these facts. On the morning of June 7th he took the children to his home and on the same date filed the petition which is before us on appeal.

The trial court held that although the conduct of the Appellee warranted a change in custody, it did not constitute such a change of circumstances as to justify either a termination or reduction in the alimony payments. Such payments had escalated at the time of the hearing to $725.00 per month and were subject to a revision on January 1, 1979. The trial court further directed the Appellant to pay Appellee’s attorney a legal fee of $1,000.00.

The appeal raises two issues: first, that the trial court erred in holding that alimony payments should not be reduced or terminated; and, second, that an attorney’s fee to Appellee’s attorney should not have been awarded.

The parties are graduates of Duke University, Appellant with a LL.B. degree and Appellee with a B. A. degree. The parties were married prior to Appellant’s graduation from law school, and Appellee worked as a secretary during Appellant’s last two years in law school, helping to support them. Since the parties moved to Little Rock, Appellant has engaged in private law practice and is a partner in a Little Rock law firm.

During their married life in Little Rock, Appellee attended to their home and children and was not employed.

Since the divorce, Appellee has taken Library Science and other courses at the University of Arkansas at Little Rock, completing approximately twenty semester hours. At the time of the hearing in August, 1978, Appellee was a full time secretarial employee earning $600.00 per month, with take-home pay of $113.00 per week.

The first question which the court must decide is whether sexual misconduct (specifically adultery) on the part of a divorced spouse can justify the termination of alimony received from the former spouse. We do not think that it can, in the absence of other circumstances such as living openly with and being supported by a paramour or gross promiscuity amounting to prostitution. No such elements are present in this case. Alimony is not awarded as a reward to the receiving spouse or as punishment of the spouse against whom it is charged. It is an effort, insofar as is reasonably possible, to rectify the frequent economic imbalance in the earning power and standard of living of the divorced husband and wife. Its continuation is not dependent on the good conduct of either spouse. While each case must and should be governed by its particular facts, it can be stated as a general principle that alimony should be terminated or modified by circumstances which relate to its need by the recipient or the ability to pay by the spouse against whom it is assessed.

This is consistent with the rationale of the one Arkansas case which has considered this principle. In Byrd v. Byrd, 252 Ark. 202, 478 S.W. 2d 45 (1972), we held:

It is apparent that the reason for the rule which we have adopted in cases of remarriage [termination of alimony payments] does not apply in this instance, for there is no indication that Mrs. Byrd’s supposed paramour has assumed any responsibility for her care and maintenance. Nor is it shown by the weight of the proof in the case at bar that Mrs. Byrd has assumed the other man’s name and held herself out publicly as his wife. In that extreme situation at least two courts have approved a termination of the former husband’s obligation to pay alimony. Grant v. Grant, 52 Cal. App. 2d 359, 126 P. 2d 130 (1942); Coggins v. Coggins, 289 Ky. 570, 159 S.W. 2d 4 (1942). In New York the same result has been reached by statute. Waddey v. Waddey, 290 N.Y. 251, 49 N.E. 2d 8 (1943).
In the court below the evidence was in sharp conflict. Even if we should accept Byrd’s contention that he and his supporting witnesses established instances of immorality on the part of Mrs. Byrd, we are not prepared to say that a former husband is entitled to sit in judgment of his divorced wife’s conduct, any more than she is entitled to take such a position with respect to his conduct.

In Christiano v. Christiano, 41 A. 2d 779 (Conn. 1945), the Connecticut Supreme Court of Errors held that the frequent public drunkenness of a divorced wife and many arrests did not justify the suspension or termination of her alimony. The court said:

. . . “[T]he great weight of authority holds that, in the case of an absolute divorce, misconduct by a wife after the decree is granted is no ground for depriving her of alimony which has been awarded her, and this conclusion is most commonly put upon the ground that after the divorce she no longer is in any way responsible to her former husband for her conduct. [Citing among other cases, Pauley v. Pauley, 280 Ky. 66, 132 S.W. 2d 512; Suozzo v. Suozzo, 16 N.J. Misc. 475, 1 A. 2d 930; Hayes v. Hayes, 220 N.Y. 596, 115 N.E. 1040; and Stanfield v. Stanfield, 22 Okl. 574, 98 P. 334.]

The court, in Christiano, supra, aptly summed up the basic thread of these decisions as follows: “It is not the function of the Court in this civil action to attempt to serve as an agency for her moral regeneration.”

The annotation in 6 A.L.R. 2d 853, 859, as supplemented, confirms the conclusion here reached-that misconduct of a divorced person per se, unless there are other elements present, should not serve as a basis for termination of alimony in the absence of inability of the divorced spouse to continue payment or lack of need on the part of the recipient spouse. Horner v. Horner, 222 So. 2d 791 (Fla. Dist. Ct. App. 1969).

The second question which this Court must decide is whether the circumstances in which the parties now find themselves have changed sufficiently since the date of the divorce in 1973 to warrant a modification of the terms of the original decree with respect to alimony. In this respect we are unable to agree with the ruling of the trial court.

After the divorce the Appellant remarried. His second wife had the custody of two minor children, ages 11 and 13, by a previous marriage. After the change in custody ordered by the trial court Appellant’s three children were added to the family group. Thus, he now has the obligation to support his second wife, provide a home for five children between ages 11 and 18, and support, maintain and educate his own three children. His second wife is receiving some payments from her former husband for the support of Appellant’s stepchildren.

Appellant’s income from his law practice, although substantial, will not permit many luxuries after he has paid his income and other taxes, paid insurance, taxes and other expenses relative to his residence, and provided for his large family. In addition, he will very soon be faced with paying for the college education of his two oldest children.

The Appellee, on the other hand, is now freed from the obligation of caring for and supporting her three children. She has secured employment and has commendably begun post graduate studies which, if pursued, should enable her to obtain income substantially greater than she is now earning. The record indicates that she is a well educated, intelligent and articulate person with a substantial potential for improvement in her earnings.

It is our opinion that there have been changes in the circumstances of the parties sufficient to necessitate a modification of the alimony payable by the Appellant. The alimony will be reduced to $600.00 per month with no provision for escalation or reduction unless there should occur substantial later changes in the circumstances of the parties. We are motivated in this regard by the belief that the Appellee has herself the ability to increase her income by her own efforts. We are further persuaded by the needs of the three children. The reduced alimony is to be effective on the first of the month following the date when this decision becomes final!

The third question for decision is the matter of attorney’s fees to be paid to Appellee’s attorney. We agree with the trial court that a fee of $ 1,000.00 is reasonable for the time and effort expended by the attorney on the issue of alimony termination or modification and this allowance should be affirmed. We further award him a fee of $750.00 for his services in connection with this appeal, to be paid by the Appellant. Costs of this appeal are assessed against the Appellant.

Affirmed as modified.

Smith,. Fogleman, Byrd and Hickman, JJ., disqualified and not participating.

Special Justices J. L. Shaver, John B. Hainen and John Burris join in this opinion.

Harris, C.J., not participating.