author: Otis H. Turner, Justice. Robert H. Dudley, Justice,

text:
    Anthony HILL v. STATE of Arkansas
    CR 90-121
    798 S.W.2d 65
    Supreme Court of Arkansas
    Opinion delivered October 29, 1990
    [Rehearing denied December 3, 1990.]

      Allen & O’Hern, by: Arthur L. Allen, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.

      Hays and Glaze, JJ., would grant rehearing.

   Otis H. Turner, Justice.

The appellant, Anthony Hill, challenges his conviction for the crime of first-degree murder and the resulting sentence of life imprisonment. He asserts two points as error. First, he argues that the trial court erroneously permitted introduction of custodial statements obtained in violation of appellant’s Fifth, Sixth, and Fourteenth Amendment rights. We find this contention to be without merit. Secondly, the appellant submits that the trial court erred in failing to give the proper instruction on first-degree murder. We agree with this contention, and while we affirm the finding of guilty, we reduce that finding from one of first-degree murder to second-degree murder and accordingly modify the sentence.

On December 22,1988, the body of Bobby Dale Green was discovered on the side of the road near Sweet Home. Pulaski County Deputy Sheriff Ken Dillon picked up the appellant for questioning about the homicide. Deputy Dillon testified that he read the appellant his rights before transporting him to the Sheriff’s Department. Upon arrival, Sergeant Carl Beadle again read the appellant his Miranda rights, and Hill signed a form waiving those rights. During questioning by Sergeant Beadle, the appellant at first denied having killed Bobby Dale Green and blamed the homicide on another person. He ultimately admitted to having killed the victim, and, after he was again advised of his rights, a tape recording of the oral statement was made. Subsequently a transcript of that statement was introduced at trial, over defense objections.

The appellant’s argument that his statements given to the Sheriffs Department were not voluntary is premised upon two assertions, neither of which can be sustained. First, he notes that, when evaluated by a private psychologist, he was found to have an intelligence quotient of between 56 and 70, to be functioning at below the level of third grade, and was classified as mildly mentally retarded. Further, he states that he had obtained only a tenth-grade education, consisting primarily of special education classes, and had low verbal skills. He also remarks on his dysfunctional family background with alcoholic father and a mentally ill brother. These circumstances, the appellant claims, place him in a position analogous to that of the appellant in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). In that case, the supreme court reversed a capital felony murder conviction in part for a failure of the state to show an effective waiver of rights. There, the appellant had dropped out of school in the eleventh grade, read only at a third-grade level, had an IQ of 70, and was classified as mildly retarded. The difference between Duncan and the present case, however, consists in the absence in the earlier case of evidence in the record of a rights-waiver form having been signed and the fact that the appellant in Duncan had been detained for a substantial length of time. As the court observed:

. . . Duncan was barely literate and marginally retarded. He was not given a waiver form to sign nor was he asked whether he waived his rights; he was kept incommunicado for three and a half days, and it was only at the end of that time that he gave an inculpatory statement. There was no showing of a deliberate and intentional relinquishment of his rights, or that he had a clear understanding of what those rights were.

291 Ark. at 531-532, 726 S.W.2d at 658.

Here, the appellant was read his Miranda rights, initialed a form indicating that he understood them, and signed a waiver of those rights. His contention that he was threatened with beating if he refused to confess presented a question of credibility for the trier of fact; the appellate court is not in a position to redetermine that credibility issue. Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989).

Regarding the appellant’s argument that his low intelligence quotient affects the validity of his waiver and the voluntariness of his statement, this court has held in Burin v. State, and in Hatley v. State, 289 Ark. 130, 709 S.W.2d 12 (1986), that a low intelligence quotient will not, in itself, render involuntary a waiver of the privilege afforded by Miranda v. Arizona, 384 U.S. 436 (1966). Other factors to be considered are the defendant’s age, experience, education, background, and the length of detention. Burin v. State; Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). here, the appellant was twenty years old at the time of the homicide, had completed either ten or eleven grades of mostly special education, owned a gun, could drive an automobile, had sold drugs regularly, and was a previously convicted felon who had more than a passing acquaintance with the legal process. Further, Dr. Jane Bunten, who tested the appellant’s intelligence at the State Hospital, testified that he rather suspiciously missed every answer on one test, although he would look first at the correct answer, and then “scan the others and pick a different picture each time.” The psychologist concluded that the appellant was purposefully aiming for a lower score.

In Smith v. State, 292 Ark. 162, 729 S.W.2d 5 (1987), this court upheld the trial court’s finding that there was sufficient evidence that a defendant understood his rights and had made a valid waiver, despite the fact that the defendant was found to have an IQ of 62, to be functioning three levels below the average expected for his age, and had obtained only a third-grade education (although he had completed ten grades). Again, the matter was considered to be one of credibility. Even a fourteen-year-old defendant, whose intelligence quotient was found to be in the “low dull normal range,” was held to have made a voluntary confession to the murder of her father in Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977). The appellant’s argument for. reversal on this point is not persuasive.

The appellant’s second point deals with the court’s jury instruction relating to first-degree murder, given over the appellant’s timely objection to the form of the instruction. The appellant’s argument is meritorious and requires us to set aside the verdict of first degree murder.

The appellant was charged with violations of Ark. Code Ann. § 5-10-101 (Supp. 1989) — capital felony murder; Ark. Code Ann. § 5-12-102 (Supp. 1989) — robbery; and Ark. Code Ann. § 5-36-103 (Supp. 1989) —theft of property. Following a trial by jury, the appellant was found guilty of first-degree murder, was acquitted of the charge of robbery, and was found guilty of misdemeanor theft of property.

Ark. Code Ann. § 5-10-101(a)(l) and (c) (Supp. 1989) provide in part:

(a) A person commits capital murder if:
(1) Acting alone or with one or more other persons, he commits or attempts to commit. . . robbery . . . and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; . . .
(c) Capital murder is punishable by death or life imprisonment without parole ....

Under the crime of capital felony murder is the lesser included offense of felony murder in the first degree. Ark. Code Ann. § 5-10-102 (Supp. 1989) provides in pertinent part as follows:

(a) A person commits murder in the first degree if:
(1) Acting alone or with one (1) or more persons, he commits or attempts to commit a felony, and in the course of and in furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; or
(2) With a purpose of causing the death of another person, he causes the death of another person; . . .
(c) Murder in the first degree is a Class Y felony.

Also within the capital murder charge is the lesser included offense of second-degree murder. Ark. Code Ann. § 5-10-103 (Supp. 1989) provides:

' (a) A person commits murder in the second degree if:
(1) He knowingly causes the death of another person under circumstances manifesting extreme and indifference to the value of human life; or
(2) With the purpose of causing serious physical injury to another person, he causes the death of any person.
(b) Murder in the second degree is a Class B felony.

In this case, the appellant was charged with capital felony murder — a killing in the course of the commission of the offense of robbery—one of the enumerated felonies under the provisions of Ark. Code Ann. § 5-10-101. In the information, he was also charged with the separate offense of robbery.

Prior to submission of the case to the jury, the appellant tendered a proper instruction on felony murder in the first degree as a lesser included offense of capital felony murder, and the proffered instruction tracked the provisions of Ark. Code Ann. § 5-10-102(a) (1). The trial court refused the appellant’s tender, apparently grounding its refusal upon the fact that the first-degree felony murder instruction would require the same elements of proof and would thus be a repetition of the capital felony murder instruction, with the only difference being the degree of punishment.

Having refused the appellant’s proffered jury charge on first-degree felony murder, the court gave instead an instruction permitting the jury to convict the appellant of first-degree murder upon a finding of “premeditation and deliberation.” This instruction followed Ark. Code Ann. § 5-10-102(a) (2).

The trial court also properly instructed the jury, without objection, on the offense of robbery. However, no instruction was requested or given on attempted robbery.

Having been so instructed, the jury returned an acquittal on the robbery charge and a verdict of guilty, not on the capital felony murder charge, but of murder in the first degree after premeditation and deliberation — an offense not included in the information charging the appellant with the homicide.

Though Ark. Code Ann. § 5-10-101 and § 5-10-102(1) admittedly overlap, this circumstance does not render either statute constitutionally suspect in its application. Penn v. State, 284 Ark. 234, 681 S.W.2d 304 (1984); Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981). Indeed, we have said that when capital felony murder is charged under Ark. Code Ann. § 5-10-101, first-degree murder is a “lesser included offense” because the same evidence used to prove the former of necessity proves the latter. Therefore, an instruction on first-degree murder is required. Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986). The proper instruction in this instance would have been the first-degree felony murder instruction as authorized under the provisions of Ark. Code Ann. § 5-10-102(1) — the very form of instruction tendered by the appellant and refused by the court.

Having found that the proper instruction was refused, we must now determine whether the omission was prejudicial and violative of the appellant’s due process rights. Evans v. State, 287 Ark. 136, 697 S.W.2d 879 (1985).

The jury acquitted the appellant on the robbery charge. This finding removed the underlying felony from the capital murder charge set forth in the information, which contained no language addressing a question of premeditation and deliberation. The appellant was thus convicted of a crime with which he had never been charged. Such a result clearly constitutes a violation of the appellant’s due process rights.

Under the language of the information, considered in conjunction with the verdict of the jury, the appellant could be convicted of no crime greater than second-degree murder. We must therefore reduce the conviction of the appellant to that of murder in the second degree, on which a proper instruction was given without objection. The appellant received the maximum sentence for first-degree felony murder — life imprisonment — and we therefore reduce that sentence to the maximum for second-degree murder — twenty years. Ark. Code Ann. § 5-4-401(a)(3) (1987); Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987).

Affirmed as modified.

Dudley, J., concurs.

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

Robert H. Dudley, Justice,

concurring. I write separately to concur in the disposition of this case.

The appellant was charged with capital felony murder. Robbery was specified as the underlying felony. Under such a charge the appellant could have been convicted of capital felony murder, first degree murder, second degree murder, robbery, or attempted robbery. Ark. Code Ann. § 5-1-110(b)(1) (1987). Interestingly enough, the State filed a separate count of robbery for the same act. The second count was surplusage since, under the capital murder charge, the appellant could have been convicted of both murder and robbery, or either of them, but sentenced for only one of the convictions. Ark. Code Ann. § 5-1-110(a) and (b) (1987); see also 1983 Supplementary Commentary, sub-section styled Felony Murder and Underlying Felony, and Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1983). The jury found appellant not guilty of capital murder and not guilty of the separate count of robbery. The jury did find appellant guilty of pre-meditated murder, a crime not charged. As set out in the majority opinion, the trial court erred in refusing to instruct on felony murder. Accordingly, we must reverse. The real issue is do we remand or do we reduce the judgment to second degree murder? The resolution of that issue turns on whether the information can be amended.

The information in this particular case cannot be amended to charge another underlying felony without violating the prohibition against double jeopardy because appellant was acquitted of the separate count of robbery. A second jeopardy for the same offense is prohibited. 21 Am. Jur. 2d § 266.1 cannot think of any other underlying felony which is essentially independent and distinct with which appellant can be charged. Further, none is suggested by the State. Thus, remanding and allowing the State to amend to a different underlying felony would violate the double jeopardy prohibition. Accordingly, I join in reducing the judgment of conviction to second degree murder.

Tom Glaze, Justice, concurring in part and dissenting in part. Appellant argues that since the jury acquitted appellant of robbery, the underlying felony to the capital murder charge, the jury was certain to have returned an acquittal of the lesser included offense of first degree felony murder. Such a conclusion is based upon sheer speculation.

First, the state based the capital murder charge on the enumerated underlying felony of robbery. Under the first degree felony murder charge, the state could have shown appellant killed Bobby Green during the course and furtherance of committing or attempting to commit any felony. In fact, appellant and Bobby Green were in the midst of a felony drug deal when appellant murdered Green. Thus, the jury may well have decided appellant was guilty of first degree felony murder even though it chose to acquit appellant on the greater crime of capital felony murder, which would have carried a penalty of life without parole.

In sum, although appellant was entitled to the first degree felony murder instruction, he, at the most, is entitled only to the reversal and remand of this case for a new trial. It is the state’s option and decision, not this court’s, as to how to proceed and what evidence to present upon the remand of this matter. By the same token, appellant is entitled to the felony murder instruction he requested, and the jury should have the opportunity to decide appellant’s culpability under that lesser included offense. Under these circumstances, appellant cannot claim that double jeopardy attached, especially when he asks for the first degree murder offense instruction he was refused. In other words, he should not be able to claim error for the trial court’s failing to give him a first degree felony murder instruction and later assert double jeopardy on that basis. This court is wrong in reducing the appellant’s life sentence to twenty years, which is the maximum term for second degree homicide.


source: Caselaw Access Project

author: Dale Price, Justice.

license: Public Domain

text:
    William Scott WELLS v. STATE of Arkansas
    CR 90-154
    798 S.W.2d 61
    Supreme Court of Arkansas
    Opinion delivered October 29, 1990

      William R. Simpson, Jr., Public Defender, and Thomas B. Devine III, Deputy Public Defender, by: Didi H. Sailings, Deputy Public Defender, for appellant.

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

William Scott Wells was convicted of kidnapping under Ark. Code Ann. § 5-11-102 (1987) and sentenced to life imprisonment. He argues his conviction of a Class Y felony was error as there was uncontroverted evidence the victim was voluntarily released in a safe place. We affirm.

Dena Daniel testified that on June 21, 1989, she drove to a service station to buy gasoline for her automobile. The appellant saw her leave and followed her home. According to Daniel, the appellant approached her in her garage while she was unloading her car and invited her to a party. When she did not consent, he pulled a pistol out of his pants, pointed it at her and forced her into his automobile. With the pistol in his lap, he then drove to the Governor’s Inn, a west Little Rock Motel. Upon entering the lobby, Daniel ran toward a group of women at the desk and started screaming. The appellant turned, walked out of the lobby and left the area.

Officer Stubenrauch, Little Rock Police Department, testified he spotted appellant’s car and license plate number which had been reported to police. He pursued him for some distance before the appellant, who was attempting to flee, wrecked his car. The officer identified a .9 millimeter automatic or semiautomatic weapon as being the same weapon he found in the glove box of the appellant’s car.

Little Rock Police Detective Larry Winn testified about a sworn statement taken from the appellant in the early morning hours of June 22,1989, in which the appellant indicated he had been told by “Asmodeus” (Satan) to go out and find a girl with blondish-red hair. His statement indicated he never pointed his gun at Daniel, but that he had shown it to her. The appellant told the police that subsequently he intended to put the gun in his mouth and fire it.

Also found in the vehicle were a suicide note the appellant had written and a gray tote bag which contained six yellow tent stakes and links of rope. Daniel testified the appellant carried the bag with him as the two were entering the motel lobby. The appellant told the police in his sworn statement he planned to tie Daniel down with the rope and stakes. At trial he denied carrying this bag into the motel.

The felony classification of kidnapping varies from a Class Y to a Class B, depending upon certain additional factors. Ark. Code Ann. § 5-1 l-102(b) (1987), the decreased penalty kidnapping statute, provides in pertinent part:

Kidnapping is a Class Y felony, except that if the defendant shows by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial, it is a Class B felony.

The trial judge instructed the jury on the two alternative punishments, and the jury convicted the appellant of a Class Y kidnapping offense. The appellant diaims he voluntarily released Daniel alive in what he considered a safe place, the Governor’s Inn. He claims nothing further was required to effect her freedom. He also contends that Daniel’s release was voluntary, reasoning that while he may not have encouraged her to seek help, he did not prevent her from doing so. Testimony established the appellant did not have a hand on Daniel, an arm around her or a gun pointing at her when the two entered the motel. He contends that he did not tell her what to do, where to go or threaten her if she did not obey him.

In determining the sufficiency of the evidence upon appeal, the court not only considers the testimony that tends to support the verdict, but also views the testimony in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other, forcing or inducing the mind to pass beyond suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). The standard of review in a criminal case is not whether the evidence eliminates a reasonable doubt, but simply whether the finding of fact is supported by substantial evidence. Broyles v. State, 285 Ark. 457, 688 S.W.2d 290 (1985).

The state contends there is no evidence showing appellant voluntarily released Daniel so as to invoke Ark. Code Ann. § 5-11-102(b) relying upon Woods v. State, 302 Ark. 512, 790 S.W.2d 892 (1990). There, the victim had been kidnapped and raped by the defendant in his car parked near the Arkansas School for the Blind. Hearing the victim scream, the school’s coach opened the vehicle door and the victim scrambled to safety. The defendant argued that since he was no longer holding the victim and she was able to get out of the car on her own, the trial court should have allowed the voluntary, safe release instruction. We disagreed and found it was not error for the court to refuse to give that instruction since the issue of a voluntary, safe release was not raised by the evidence.

The state argues that in this case, as in Woods, supra, it was the action by the victim herself that effectuated her escape rather than any action by the kidnapper which ultimately resulted in the safe release. The appellant did not take Daniel to the motel lobby with the intention of terminating the kidnapping. Rather, the appellant took Daniel through the lobby because the room he had rented was adjacent to the lobby area and one had to walk through the lobby in order to gain access to the room. Once in the lobby, Daniel was able to get away from appellant and run over to a group of people at the desk. The record reflects the only reason the appellant released his physical grip from Daniel’s neck as they were entering the motel was so that he could open the door to the motel. He could not do this with his other hand or hold Daniel at gun point because he was carrying the tote bag containing the rope and tent stakes.

We hold there was substantial evidence to support the appellant’s conviction of a Class Y kidnapping offense inasmuch as he did not voluntarily release his victim.

In accordance with Rule 11 (f) of the Supreme Court Rules, there were no adverse rulings to the appellant involving prejudicial error.

Affirmed.


author: John C. Gregg, Special Chief Justice.

text:
    ARKANSAS REAL ESTATE COMMISSION v. Frances VETETO, et al.
    89-227
    798 S.W.2d 52
    Supreme Court of Arkansas
    Opinion delivered October 29, 1990

      Steve Clark, Att’y Gen., by: Stacy VanAusdall, Asst. Att’y Gen., for appellant.

      John W. Beason, for appellee.
   John C. Gregg, Special Chief Justice.

The Real Estate Recovery Fund (Fund) was created in 1979 pursuant to Act 73 of 1979 (now Ark. Code Ann. § 17-35-401 et seq.) The Act authorizes payment to victims of illegal or unethical acts by real estate brokers and agents (licensees) not to exceed $10,000.00 for any one violation, or $50,000.00 for the acts of any one licensee. The Fund is administered by the Arkansas Real Estate Commission (Commission), Appellant.

Appellees (hereafter claimants) were claimants before the Commission due to the illegal and unethical acts of Gary W. Jenkins and John E. Massey, brokers licensed by the Commission. Between 1981 and 1984, Jenkins and Massey defrauded the claimants who subsequently filed claims with the Commission. The Commission determined approximately $216,000.00 in total damages.

Prior to the claimants filing their claims with the Commission, Jenkins filed for relief pursuant to Chapter 7 of the United States Bankruptcy Code and was granted a discharge on April 28, 1987. Jenkins listed all of the claimants in his bankruptcy proceeding except Dwight and Beverly Reeves. Thus, Dwight and Beverly Reeves’ claim against Jenkins survived his discharge. None of the claimants filed proceedings to object to Jenkins’ discharge.

In October of 1988 the claimants, including Dwight and Beverly Reeves, filed 13 separate claims with the Commission seeking recovery from the “fund.”

The Commission held hearings in November of 1988 and entered 13 separate orders on February 1, 1989. In each order, the Commission unanimously found that as a result of the proven violations of Jenkins and Massey, each claimant was damaged in a determined amount. Both Jenkins and Massey were directed to pay $8,700.00 damages in the Dwight and Beverly Reeves claim, and Massey alone was directed to pay damages in all 12 remaining claims.

On April 19, 1989, following the failure of Massey or Jenkins to pay the ordered amounts, the Commission held an additional hearing and voted unanimously to pay to the claimants $58,700.00 from the “fund.” The Commission found that the claims against Massey were limited to the statutory limit of $50,000.00, but that due to the bankruptcy discharge of Jenkins, claims against him were limited to the surviving claim of Dwight and Beverly Reeves in the amount of $8,700.00.

All claimants, except Dwight and Beverly Reeves, appealed the decision of the Commission to the Circuit Court of Craighead County. On May 23,1989 the Circuit reversed and remanded the matter to the Commission with directions to pay the full $50,000.00 “fund” benefit on behalf of both Jenkins and Massey, i.e., a total of $100,000.00.

From that order, the Commission appeals. We affirm for the reasons set out herein.

The Commission first asks us to reverse on the basis that the Circuit Court erred in holding that the “fund” was liable for determined damages awarded by the Commission due to acts of a licensee who had been previously discharged in bankruptcy.

We hold that the bankruptcy discharge granted to Jenkins did not abrogate the liability of the “fund” under the facts of this case.

A brief review of the statutory provisions is necessary. Under Ark. Code Ann. § 17-35-404(a) the “fund” is established and maintained by fees paid by licensees.

The awards procedure is set forth in Ark. Code Ann. § 17-35-406. This statute provides:

(a) In any disciplinary hearing before the commission which involves any licensee who has allegedly violated any provision of this chapter or commission regulations, the commission shall first determine whether a violation has occurred.
(b) If so, the commission shall then determine the amount of damages, if any, suffered by the aggrieved party or parties. However, damages shall be limited to actual damages in accordance with § 17-35-407.
(c) The commission shall then direct the licensee to pay that amount to the aggrieved party or parties.
(d) If that amount has not been paid within thirty (30) days following entry of the commission’s final order in the matter and the order has not been appealed to the circuit court, then the commission shall, upon request, pay from the fund to the aggrieved party or parties the amount specified. However, the commission shall not:
(a) Pay in excess of ten thousand dollars ($10,000.00) for any one (1) violation or continuing series of violations of a given licensee;
(2) Pay an amount in excess of the fund balance.
(e) The question of whether or not certain violations constitute a continuing series of violations shall be a matter solely within the discretion and judgment of the commission.
(f) Nothing within this section shall obligate the fund for any amount in excess of fifty thousand dollars ($50,000.00) with respect to the acts of any one (1) licensee.

Upon Jenkins filing for relief under the United States Bankruptcy Code, the automatic stay imposed by 11 U.S.C. § 362 became effective. However, upon Jenkins obtaining his discharge, the narrower discharge injunction of 11 U.S.C. § 524 came into effect. 11 U.S.C. § 524(a)(2) states:

(a) A discharge in a case under this title -
(2) operates as an injunction against the commencement or continuation of an action, the employment of process, or any act, to recover or offset any such debt as a personal liability of the debtor, or from property of the debtor, whether or not discharge of such debt is waived.

The discharge injunction is narrower in breadth than the automatic stay under § 362 which stays all judicial proceedings even when the debtor is only a nominal party. Although a discharge relieves the debtor from personal liability on the scheduled debts it does not have the effect of extinguishing the debt. See In re Lembke, 93 B.R. 701 (Bkrtcy D.N.D. 1988). Further, the discharge is intended for the personal benefit of the debtor and does not affect the rights or liabilities of any other parties. Mellon Bank. v. M.K. Siegel, 96 B.R. 505 (E.D. Pa. 1989), In re Berry 85 B.R. 367 (Bkrtcy W.D. Pa. 1988), In re Barrup, 51 B.R. 321 (Bkrtcy D.Vt. 1985).

Additionally, as we held in First American National Bank v. Coffey-Clifton, 276 Ark. 250, 633 S.W.2d 704 (1982), 11 U.S.C. § 524(e) provides that the “discharge of a debt of a debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.”

This case is very similar to the situation where a debtor’s discharge in bankruptcy of liability to an accident victim does not affect the victim’s ability to recover from the debtor’s automobile liability insurer. See, In re Traylor, 94 B.R. 293 (S.D.N.Y., 1988).

Under the Act, the only conditions precedent to a claimant making application for payment from the “fund” are (1) the Commission shall first determine whether a violation has occurred, (2) the Commission shall determine the amount of damages suffered by the aggrieved party, (3) the Commission shall direct the licensee to pay, and (4) if that amount has not been paid within thirty (30) days following entry of the Commission’s order the Commission shall, upon request, pay from the “fund” to the aggrieved party or parties the amount specified, however, not in excess of the statutory maximum.

The foregoing analysis leads us to the conclusion that nothing in the discharge injunction of 11 U.S.C. § 524 prevents the Commission from directing a licensee to pay amounts to aggrieved parties. We agree that a directive to pay the aggrieved parties might have been meaningless in view of Jenkins’ bankruptcy discharge, but we disagree that under the applicable law the discharge should defeat an entitlement to reimbursement which neither the Act nor the spirit of the Act implies is dependent upon anything other than a “request” by the aggrieved party for payment. The very language of Ark. Code Ann. § 17-36-406(d), makes it obligatory upon the Commission to honor such a request to the extent provided in the Act.

The second issue was actually raised by this Court. Ark. Code Ann. § 17-35-407(e)(l) and (2) impose certain jurisdictional limitations on circuit courts in reviewing appeals from the Commission. Neither party discussed jurisdiction. However, jurisdiction is a question we will raise on our own. Arkansas Savings & Loan v. Corning Savings & Loan, 252 Ark. 264, 478 S.W.2d 431 (1972). Because we were unsure of the intent behind § 17-35-407(e)(l) and (2) we took the unusual, but not unprecedented step of requesting appellant and appellees to address the jurisdiction limitations iriiposed upon the circuit court by § 17-35-407(e) which reads:

The circuit court shall have no jurisdiction or authority to order payments from the fund in any amount in excess of either: (1) the amount determined by the commission; or (2) the limits set forth in § 17-35-406.

The Commission, in its supplemental brief, relies heavily upon Act 888 of 1989, which amended in part the Real Estate Recovery Fund Act. However, we deem these amendments prospective, and therefore not applicable to this proceeding. See Scott v. Consolidated Health Management, Inc., 297 Ark. 601, 764 S.W.2d 434 (1989) and Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979).

We hold that the circuit court did not exceed its authority or jurisdiction in ordering payment of the maximum amount of $50,000.00 due to Massey’s actions and payment of the maximum amount of $50,000.00 due to Jenkins’ actions.

The amounts ordered by the circuit court do not exceed the $50,000.00 per licensee limit set forth in § 17-35-406.

Neither did the amounts ordered by the circuit court exceed the amount “determined by the Commission.” In each separate proceeding before the Commission, the Commission found unanimously that as a result of the proven violations by both Jenkins and Massey, the claimants had been damaged and determined the amount of those damages to exceed a total of $216,000.00. However, due to an error in determining the legal affect of the bankruptcy discharge of Jenkins, the Commission restricted the amount paid from the “fund” due to the acts of Jenkins to $8,700.00 for the surviving claim of Dwight and Beverly Reeves.

The order of the circuit court rectified this incorrect legal conclusion and was within its authority and jurisdiction since the circuit court did not order the payment of any damages that had not been determined by the Commission.

Holt, C.J., not participating.


author: Per Curiam.

text:
    Preston P. WILLIAMS v. STATE of Arkansas
    RC 90-56
    797 S.W.2d 457
    Supreme Court of Arkansas
    Opinion delivered October 29, 1990

      Robert H. Smith, for appellant.
    No response.
   Per Curiam.

Appellant, Preston P. Williams, by his attorney, has filed for a rule on the clerk.

His attorney, Robert H. Smith, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our per curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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


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

text:
    J. Bill BECKER and Jim Clark, On Behalf of Themselves and All Others Similarly Situated v. W.J. “Bill” McCUEN, Secretary of State, Appellee, and S.T. “Ross” Smith, Jr., Individually and On Behalf of The Committee for Amendment 2, Appellee-Intervenors
    90-286
    789 S.W.2d 71
    Supreme Court of Arkansas
    Opinion delivered October 31, 1990

      Youngdahl, Trotter, McGowan & Farris, by: Scott C. Trotter, for appellants.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.

      Friday, Eldredge & Clark, by: Paul B. Benham III and Robert S. Shafer, for appellee-intervenors S.T. “Ross” Smith, Jr., Individually and On Behalf of the Committee for Amendment 2.
   Robert H. Dudley, Justice.

The appellants, J. Bill Becker and Jim Clark, filed this action in chancery court asking that the proposed “Interest Rate Amendment” be taken off the November 6,1990 ballot. They argued that the popular name and ballot title were defective and misleading. The Chancellor refused to strike the proposed amendment from the ballot. We affirm that decision.

In Arkansas there are two different ways for a constitutional amendment to be proposed to the public. The two courses employ different procedures and have different legal requirements. Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976). The first way, which has been available through all five of our constitutions, is through the General Assembly. The requirements of that method are set out in Ark. Const, art. 19, § 22. The second way, adopted in 1920, is through the initiative and referendum power reserved to the people. The requirements of the second way are set out in Amendment 7. The provisions of Amendment 7 do not govern constitutional amendments proposed by the General Assembly. Berry v. Hall, 232 Ark. 648, 339 S.W.2d 433 (1960). This case involves an amendment proposed by the General Assembly and, accordingly, is governed by Ark. Const, art. 19, § 22. In such cases our jurisdiction is appellate only. Berry v. Hall, supra.

The factual background leading to this case is not complex. The amendment was proposed in 1989 through a House Joint Resolution. The title of that joint resolution was styled:

PROVIDING FOR A PROPOSED CONSTITUTIONAL AMENDMENT TO ESTABLISH A MAXIMUM LAWFUL RATE OF INTEREST IN THIS STATE

The joint resolution provided that the ballot title would be:

AN AMENDMENT TO SECTION 13 OF ARTICLE XIX OF THE CONSTITUTION OF THE STATE OF ARKANSAS TO CONTROL INTEREST RATES AND SET THE PENALTY FOR VIOLATIONS THEREOF.

It further provided that the popular name would be:

THE 1989 INTEREST RATE CONTROL AMENDMENT

Ark. Code Ann. § 7-9-113(b)(2) and (c) (1987) require the Secretary of State to publish the proposed amendment, with each legal notice to contain “the popular name, the ballot title” and a text of the amendment. After publication, the Secretary of State is to furnish the election commissioners the popular name and ballot title for the official ballot. Ark. Code Ann. § 7-9-115 (1987). Appellee McCuen, in performing his statutory duties, somehow added the title of the joint resolution to the end of the designated ballot title. The result was that the legal notices were published, and the official ballots are printed as follows:

(POPULAR NAME)
THE 1989 INTEREST RATE CONTROL AMENDMENT (BALLOT TITLE)
AN AMENDMENT TO SECTION 13 OF ARTICLE XIX OF THE CONSTITUTION OF THE STATE OF ARKANSAS TO CONTROL INTEREST RATES AND SET THE PENALTY FOR VIOLATIONS THEREOF. PROVIDING FOR A PROPOSED CONSTITUTIONAL AMENDMENT TO ESTABLISH A MAXIMUM LAWFUL RATE OF INTEREST IN THIS STATE.

Appellants advance six arguments for reversal of the trial court. Their first is that the trial court should be reversed because its written opinion did not address each of their contentions. We need not dwell on the argument. An appeal in a chancery case opens the whole case for review as if no decision had been made in the chancery court. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979).

It has been the invariable practice of this court not to remand a case to a chancery court for further proceedings and proof where we can plainly see what the equities of the parties are, but rather to render such decree here as should have been rendered below.

Accordingly, we now address each of appellants’ remaining arguments.

Their primary argument is that the ballot title as published and certified by the Secretary of State is misleading and deceptive. Neither art. 19, § 22, nor any statute, requires that a ballot title be placed on amendments which are proposed by the General Assembly. Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982). Article 19, § 22 only requires that amendments referred to the people by the legislature “shall be so submitted as to enable the electors to vote on each amendment separately.” As a direct result of that language we only look to see: (1) whether the ballot title is sufficient to “distinguish and identify” the proposal, and (2) whether the ballot title is a “manifest fraud upon the public.” Becker v. Riviere, supra. This is a different, and less demanding, standard than is employed for Amendment 7 initiatives. See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984).

When the General Assembly submits a ballot title with a proposed amendment it must be sufficient for a voter to distinguish it from the other proposals on the same ballot. This ballot title, even as mistakenly altered by the Secretary of State, distinctly separates and identifies this proposed amendment from the others.

In addition, a ballot title must not constitute a manifest fraud upon the public. The mistakenly altered title meets this test. The first sentence was approved word for word in 1982 in Becker v. Riviere, supra. The General Assembly obviously relied on that approval and repeated it for this proposed amendment. The second sentence, the one mistakenly added, was copied from the title of the joint resolution. That sentence, “Providing For A Proposed Constitutional Amendment To Establish A Maximum Lawful Rate Of Interest In This State,” adds information to the title. The additional sentence does not render the title a manifest fraud upon the public.

Appellants further argue that the ballot title is manifestly fraudulent because it fails to disclose that the proposed amendment has no maximum rate of interest for credit contracts which are equal to or exceed $250,000.00. It is not required that the ballot title contain a synopsis of the proposed amendment and cover every detail of it. Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884(1942). It is sufficient if the title is complete enough to convey an intelligible idea of the scope and import of the proposed amendment. Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356 (1931). We have recognized the impossibility of preparing a ballot title which would suit everyone. Hogan v. Hull, 198 Ark. 681, 130 S.W. 716 (1939).

The ballot title of this proposed amendment conveys the idea that it amends the present constitution, and that it controls interest rates. The provision relating to credit contracts which equal or exceed $250,000.00 is a minor exception which will apply only to a few members of the general public. The provisions generally applying to the public do, in fact, control maximum rates. The failure to mention the exception does not constitute a manifest fraud.

Appellants additionally argue that the ballot title constitutes a manifest fraud on the public because the title written by the legislature for the proposed amendment is the same title used for a 1982 interest rate amendment. See Becker v. Riviere, supra. The argument is without merit because: (1) it is doubtful if any member of the public remembers the ballot title from eight years ago, and (2) even if someone should remember it, there is no deceit in using the same title on two proposed amendments separated by eight years when both deal with the same subject matter.

Appellants next argue that the popular name “The 1989 Interest Rate Control Amendment” is misleading in that it is being voted on in 1990, not 1989. The popular name is a device used to identify the proposal and to facilitate voter discussion before the election. It need not contain the detailed information of a ballot title. Pafford v. Hall, 111 Ark. 734, 233 S.W.2d 72 (1950). However, it cannot contain catch phrases or slogans which tend to mislead or give partisan coloring to a proposal. Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984). The legislature proposed the amendment in 1989 and, accordingly, named it “The 1989 Interest Rate Control Amendment.” The use of the 1989 date does not mislead or give partisan coloring to the proposal.

Ark. Code Ann. § 7-9-113(b)(2) and (c) (1987) requires the Secretary of State to publish the popular name and ballot title as written by the General Assembly, and Ark. Code Ann. § 7-9-115(a) requires him to certify the same to the election commissioners. The appellee Secretary of State failed to publish or certify the ballot title as written by the Legislature. Because of this mistake, appellants ask us to strike the proposal from the ballot. We decline to do so.

The Secretary of State’s duties were mandatory. The appellants could have applied for a writ of mandamus months ago when the mistaken publication was made. The Secretary would have been ordered to correct his error. Appellants passed that opportunity and waited instead until the eleventh hour and asked the trial court to strike the matter from the ballot. Striking the proposal from the ballot is not the proper remedy under these facts. Although the appellee made a mistake in the publication and certification, he still substantially complied with the applicable statutes. There is no hint that his mistake has caused any real prejudice to either side of this issue. Accordingly, we decline to strike the proposal from the ballot.

We do not intend for this holding to be construed as authorizing the Secretary of State to rewrite a legislatively proposed ballot title. If, by mistake or otherwise, the Secretary of State’s action causes prejudice to either side of an issue, it would be proper for a court to strike the matter from the ballot. Having addressed each of appellants’ arguments, and finding no merit in any of them, we affirm.

As previously set oút, we have imposed two different standards of review for ballot title cases. When an initiated proposal is submitted under Amendment 7 we require the title to be: (1) intelligible, (2) honest, and (3) impartial. Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960). However, when the Legislature submits a proposal pursuant to art. 19, § 22, we only require that it not be a “manifest fraud upon the public.” Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982). A title might well pass one test but not the other. We question the propriety of such a double standard. However, since the General Assembly has relied on our past decision, a change should not be made retroactively. See Purvis v. Hubbell, 273 Ark. 330, 620 S.W.2d 282 (1981). Accordingly, we give notice of our intention to prospectively reconsider our cases at the next opportunity.

The mandate in this case is effective immediately.

Hays and Glaze, JJ., concur.

Tom Glaze, Justice,

concurring; If nothing else is gained from the lottery and interest rate amendment challenges, surely it has become obvious that constitutional reform is necessary in this state’s procedures that provide methods to initiate, refer and propose constitutional amendments. Allegations of mistake and fraud attend the ballot title challenges of both amendments.

In trying to sort through and to resolve such disputes, this court, in the majority opinion, points out that, in accordance with prior case law, it must decide the validity of the two ballot titles by using different legal standards or measures to determine if an amendment should be placed on the 1990 General Election ballot. Accordingly, the court applied a strict measure when reviewing the ballot title to the lottery amendment because it was an amendment 7 initiative proposal by the people. However, in this case involving the interest rate amendment ballot title, the court is legally required to apply a more lenient measure merely because the proposal is made by the General Assembly under Ark. Const, art. 19, § 22.

Of course, the source of power (the people or the General Assembly) from which a proposed constitutional amendment comes has no relationship to or bearing on whether a ballot title on a voting machine or paper ballot can be read and understood by the voters. Certainly, no one would seriously argue that public officials should have greater discretion or latitude to mislead voters when wording ballot titles than do citizens who initiate constitutional proposals.

In light of the last-minute circumstances by which these proposed measures come to this court for review, I have expressed my opinion that both proposed amendments should be placed on the ballot. See Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990) (Glaze, J., dissenting). In each case, a full text of the amendment had been published and the proponents and opponents of each amendment have dutifully sounded and revealed the good and bad points of these measures. As I said in my dissent in this court’s lottery decision, I have confidence that the voters will use their knowledge and common sense when casting their ballot on these important issues.

But, aside from what might be the results of election year 1990 concerning these amendments, I am hopeful constitutional reform will result from these two ballot title challenges, so the people, by their own initiative or through their representatives, will rid us of similar disputes and controversies in the future.

Hays, J., joins this concurrence.


author: Jack Holt, Jr., Chief Justice. Jack Holt, Jr., Chief Justice.

text:
    Larry BARNETT, The Farmers Insurance Group of Companies, and The Truck Insurance Exchange v. ARKANSAS TRANSPORT COMPANY, Inc.
    90-29
    798 S.W.2d 79
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990
    [Supplemental Opinion on Denial of Rehearing December 17, 1990.] ,

      Eichenbaum, Scott, Miller, Files & Heister, P.A., by: Frank S. Hamlin and Christopher O. Parker, for appellants.

      Friday, Eldredge & Clark, by: William M. Griffin III, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves an insurance contract issued by the appellant, The Truck Insurance Exchange (Exchange), through its agent, Larry Barnett, to the appellee, The Arkansas Transport Company, Inc. (Transport), for the period between September 10,1985, through September 10,1986. The Exchange is a member company of, and owned by, the appellant, The Farmer Insurance Group of Companies.

In its complaint, Transport initially asserted claims of breach of contract, deceit, fraudulent misrepresentation, negligence, and bad faith breach of contract. On June 1,1989, the jury awarded Transport $115,251.00 on its claim of breach of contract. The trial court entered its judgment on October 24,1989, which incorporated the jury award of $115,251.00 and also included $34,497.00 in attorney’s fees and $691.69 as reimbursement for costs to Transport.

The appellants allege two points of error on appeal: 1) that the trial court erred in refusing to allow them to cross-examine James E. Siegler, Jr., concerning the Arkansas Transportation Commission’s authorization of Transport’s supplemental insurance tariff, and 2) that the trial court erred in awarding Transport attorney’s fees in the amount of $34,497.00. Additionally, Transport cross-appeals and argues that the trial court erred in directing a verdict in favor of the appellants on the issue of fraud and submission of punitive damages.

We find no merit in any of the parties’ claims and affirm.

Transport first purchased a gross receipts liability policy from the Exchange through its agent, Larry Barnett, for the period September 10, 1984, to September 10, 1985. Transport, under this gross receipts policy, paid a monthly premium that was calculated as a specified percentage of the gross receipts that it had earned during the previous month. Before the expiration of this policy, in March and August 1985, the Exchange’s commercial managers recognized the desirability of increased premiums for this special type of insurance coverage, but no action was taken to implement an increase.

On September 9, 1985, Barnett confirmed in writing to Transport that its renewal premium rate from September 10, 1985, to September 10,1986, would be $4.79 per $100.00 of gross receipts. Subsequently, on December 24, 1985, the Exchange notified Transport that its premium rate would be changed on February 1, 1986, to $7.19 per $100.00 of gross receipts, an increase of $2.40. Transport paid the increased premium to the Exchange from February 1 to September 10, 1986, ostensibly under protest.

During this period, Transport was granted a $4.90 tariff rate increase from the Arkansas Transportation Commission (Commission) on January 17,1986, that went into effect on March 1, 1986.

At trial, James E. Siegler, Jr., Transport’s Chief Operating Officer, testified on direct examination in pertinent part as follows:

Q Could you tell the ladies and gentlemen of the jury why it is important, as a trucking company, that you have a rate that you know you are going to have for a year.
A I’ll try. In our business, we are a regulated common carrier, and by regulated means different state agencies and government agencies regulate our business, they tell us exactly what we can haul, when we can haul it and how much we can haul it for. Now, it’s true that we have had some deregulation in the United States recently, but still rates are regulated. Now, on ICC basis, the rates are pretty much loose enough that you can file a rate and within so many days, it will be approved, it’s just a stamp of approval. However, we have business in Arkansas, Louisiana and Tennessee that the states have also governed their tariffs and we have to apply for a rate increase, and that application form sometimes takes as long as six months, you have to file it, you have to have a hearing on it, and, after the hearing, they’ll wait and give their decision on that rate increase, and sometimes they grant the increase, sometimes they don’t but insurance cost is such a large expense in our business that we need to have some type of finger on what our costs are going to be in the future, whether we need a rate increase ourselves, so that’s the reason why it’s so important that we know what our insurance costs are going to be, at least for a certain period of time in advance.

On cross-examination, Mr. Siegler also testified in pertinent part as follows:

Q Mr. Siegler, when you received this rate increase in February of ‘86, the one that’s the subject of this lawsuit, did you, in fact, pass any of this along to your customers?
A We have tried to pass most of it to our customers, but we haven’t been able to do 100% of it.

The appellants then attempted to introduce a certified copy of Transport’s approved tariffs on file with the Commission. Transport objected on the basis of relevancy, and the trial court denied the introduction of the document.

The appellants claim first that the trial court erred in refusing to allow them to cross-examine Mr. Siegler concerning the Commission’s authorization of Transport’s supplemental insurance tariff. They argue that the proffered document contradicts his testimony and that the proffered document is relevant.

The appellants contend that Mr. Siegler’s testimony, that an application for a tariff rate increase “sometimes takes as long as six months,” was an affirmative statement that it had taken six months for Transport to implement a tariff increase in this case. Read in context, the patently misconstrued interpretation advocated by the appellants is inaccurate because Mr. Siegler’s testimony is clear and plain that a tariff rate increase "sometimes takes as long as six months.” The proffered document simply would not have contradicted this statement or have affected Mr. Siegler’s credibility as a witness, as the tariff rate increase was approved on January 17,1986, and went into effect on March 1, 1986, approximately one and a half months later. Then, too, Transport was doing business in Louisiana and Tennessee, which also governed their tariffs.

The appellants also state that this document was relevant, in response to Transport’s objection of irrelevancy. We noted in Washington Nat’l Ins. Co. v. Meeks, 249 Ark. 73, 458 S.W.2d 135, appeal after remand 252 Ark. 1178, 482 S.W.2d 618 (1970), that where an inquiry is pertinent to the main issue and within the proper scope of cross-examination to wring disclosures which might present a view more favorable to the cross-examiner, no question of relevancy is involved. However, an offer of proof is necessary where the relevancy of materiality of the answer is not apparent. Additionally, rulings on the relevancy of evidence are discretionary with the trial court, and we do not reverse absent an abuse of discretion. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985) (citing Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983)). '

In this case, the main issue before the trial court was whether the appellants had breached an insurance contract with Transport. Any inquiry as to Transport’s conveyance of the increased insurance premium to its customers is not readily apparent or relevant to this issue. The appellants argue that Transport had a duty to mitigate its damages to them and that the tariff rate increase was relevant in that regard. However, the appellants again misconstrue any duty that Transport might have had to mitigate its damages; Transport’s duty to the appellants to mitigate its damages would have been limited to actions relating to its increased insurance premium under its contract. Any alleged recoupment of this cost through a tariff rate increase from Transport’s various customers in Arkansas, Louisianna, and Tennessee as a result of increased premiums is, at best, purely speculative and not relevant to whether or not the insurance contract was breached and an increased premium rate charged by the appellants.

Contained in the record is an in chambers discussion, labeled by the court reporter as “off the record,” in which the trial court made a reference to the collateral source rule. The appellants now attempt to claim in their briefs that this comment by the trial court served as the basis for the trial court’s ruling. However, the record clearly reflects that the trial court based its ruling on the irrelevancy of the tariff rate increase and that the reference to the collateral source rule was made after the trial court had made its ruling. Thus, the trial court did not rely on the rule for its action, and any discussion of the rule is inapplicable to this point of error.

The relevancy or materiality of the tariff rate increase not being apparent, the appellants’ failure to make an offer of proof precludes us from speculating on this issue. Consequently, we can not say that the trial court abused its discretion in this matter.

Next, the appellants assert that the trial court erred in awarding Transport attorney’s fees in the amount of $34,497.00. Ark. Code Ann. § 16-22-308 (Supp. 1989) provides for attorney’s fees in certain civil actions and provides as follows:

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.

Our general rule relating to attorney’s fees is well established and is that attorney’s fees are not allowed except when expressly provided for by statute. Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988) (citing Harper v. Wheatley Implement Co., 278 Ark. 27, 643 S.W.2d 537 (1982)).

In this case, the jury returned a verdict hi favor of Transport on June 1, 1989. Section 16-22-308 was revised to include the term “breach of contract” and was made effective by Act 800 of 1989 on July 3, 1989. The trial court subsequently entered its judgment on October 24, 1989. The appellants claim, while recognizing the court of appeals’ decision in City of Fayetteville v. Bibb, 30 Ark. App. 31, 781 S.W.2d 493 (1989), that it is improper to retroactively apply a statute that has the effect of declaring fees to be an element of consequential damages.

In Bibb, the court of appeals discussed the issue as follows:

In Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962), the court said:
The rule by which statutes are construed to operate prospectively does not ordinarily apply to procedural or remedial legislation. ‘The strict rule of construction contended for does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. These should receive a more liberal construction, and should be given a retrospective effect whenever such seems to have been the intention of the Legislature.’
* * * *
Courts of other states which have considered the specific issue raised here have held that statutes providing for attorney’s fees to be taxed as costs are to be given retrospective application. In Cox, the court said:
The general rule that statutes will be given prospective operation only does not apply to statutes effecting procedure. Taxing of attorney’s fees as costs relates to a mode of procedure.
We agree.
(Citations omitted.)

We, in turn, adopt the court of appeals’ rationale in holding that a statute providing for attorney’s fees to be taxed as costs is to be given retrospective application. Since the trial court’s judgment was not entered until after the statute went into effect, the trial court’s award of attorney’s fees was valid.

The appellants alternatively contend that the amount of the award for attorney’s fees is excessive. In Miller’s Mutual Ins. Co. v. Keith Smith Co., 284 Ark. 124, 680 S.W.2d 102 (1984) (citing Southall v. Farm Bureau Mutual Ins. Co. of Ark., 283 Ark. 335, 676 S.W.2d 228 (1984)), we noted that an award of attorney’s fees is a matter within the sound discretion of the trial court, and in the absence of abuse, its judgment will be sustained on appeal.

Here, the trial court made an award of 90% of counsel’s total bill for services provided on this case. The reduction in the percentage was a result of Transport’s counsel having attributed 5 % to 10 % of the fee as being solely related to the claims of fraud or bad faith. Transport’s counsel stated in his deposition testimony as follows:

Q ... Were you continuing during that trial preparation to prepare for the broader two counts in the litigation, the bad faith, punitive damages?
A I can’t remember, Chris. I was just preparing for everything that might happen at trial. I guess the primary thing was to prepare the breach of contract because if I didn’t get the breach of contract, I couldn’t get anything else.
Q And good faith, that was pulling out time not contributed to the breach of contract, the five or ten percent you testified to?
A Yes, because you just can’t separate the two. It’s almost an impossible task to separate issues like that.
Q No further questions, thanks, I appreciate it.

The appellants further provide the following breakdown of Transport’s counsel’s expenses:

Drafting pleadings 3%
Client communication and case management 7 %
Discovery disputes 28 %
Deposition trips to Kansas City and Los 10% Angeles
Researching and responding to summary 12% judgment and motion in limine
Intensive trial preparation (5/21/89 to 30% 5/31/89)
Trial 10%

Counsel’s hourly rate structure was stipulated as being reasonable in amount. The deposition testimony obtained in Kansas City and Los Angeles was introduced into evidence or used for cross-examination purposes at trial; travel expenses related to the taking of these depositions. Even if we were to concede the accuracy of the appellants’ characterization of Transport’s costs and fees, the appellants fail to demonstrate any abuse of discretion in the trial court’s award of attorney’s fees to Transport.

Finally, Transport cross-appeals and asserts that the trial court erred in directing a verdict in favor of the appellants on the issue of fraud and the submission of punitive damages. We note initially that both of the parties briefed this point of error, but failed to indicate any reference to the trial court’s ruling in the record. We have searched the transcript and found no ruling by the trial court relating to a directed verdict in favor of the appellants on the issue of fraud and the submission of punitive damages.

We noted in McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989), that although the statement of facts in the appellant’s brief recited that a motion in limine was heard by the court in chambers and denied, where there was nothing in the record and consequently nothing in the appellant’s appendix to show that the motion was ever ruled on, and there was no record of any proceedings in chambers where the motion was supposed to have been denied, there was no order or ruling before the supreme court forming the basis for the point argued. As a result, there was nothing before the court on which to rule.

We find McDonald to be determinative on this point of error, and hold that there is nothing before us upon which to rule because there is no order or ruling forming the basis for the point argued.

Affirmed.

Turner, J., not participating.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

DECEMBER 17, 1990

800 S.W.2d 429

1. Torts — elements of cause of action in deceit. — The five elements of the tort cause of action in deceit are: (1) a false representation made by the defendant, which must ordinarily be one of fact; (2) knowledge or belief on the part of the defendant that the representation is false—or, what is regarded as equivalent, that he has not a sufficient basis of information to make it; (3) an intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation; (4) justifiable reliance upon the representation on the part of the plaintiff, in taking action or refraining from it; (5) damage to the plaintiff, resulting from such reliance.

2. Torts — deceit — no proof of false representation. — Because the appellee could not establish false representation, there was no cause of action for deceit.

3. Appeal & error — repetitious arguments not proper subject for rehearing.—Arguments that are merely repetitious of those already considered by the court are inappropriate subjects for a petition for rehearing.

Petition for Rehearing; denied.

Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: Christopher O. Parker, for appellants.

William M. Griffin III, for appellee.

Jack Holt, Jr., Chief Justice.

All parties requested a petition for rehearing.

The appellee, Arkansas Transport Company, Inc. (Transport), cross-appealed and asserted that the trial court had erred in directing a verdict in favor of the appellants, Larry Barnett, The Farmers Insurance Group of Companies (Farmers), and The Truck Insurance Exchange (Exchange), on the issue of fraud and the submission of punitive damages. The parties, in their briefs, did not direct us to a ruling on this issue nor did this court find a specific ruling in the record by the trial court relating to these issues; as a result, we declined to review Transport’s cross-appeal.

Transport cites to its supplemental appendix for a showing that the trial court ruled on the appellants’ motion for directed verdict on fraud and punitive damages. The appellants initially made the motion in issue, then later made a motion for directed verdict on negligence, followed by the trial court’s granting of “the motion.” Although we interpreted the trial court’s action to be in reference to the motion for directed verdict on negligence, which directly preceded the ruling, on further examination of the record we now recognize that the trial court evidently meant to include the motion for directed verdict on fraud and punitive damages in its ruling as well. Even so, Transport’s argument is unpersuasive on this issue.

In Storthz v. Commercial Nat’l Bank, 276 Ark. 10, 631 S.W.2d 613 (1982) (citing MFA Mutual Ins. Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981)), we set forth the five elements of the tort cause of action in deceit. Proof of each element is necessary, and the elements are as follows:

1) A false representation made by the defendant. In the ordinary case, this representation must be one of fact.
2) Knowledge or belief on the part of the defendant that the representation is false - or, what is regarded as equivalent, that he has not a sufficient basis of information to make it. This element often is given the technical name of ‘scienter”.
3) An intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation.
4) Justifiable reliance upon the representation on the part of the plaintiff, in taking action or refraining from it.
5) Damage to the plaintiff, resulting from such reliance.

Transport asserts that the basic misrepresentation in this case was a representation to the insured that he had an insurance policy with a guaranteed rate for a year. Transport relies on letters dated March 8,1985, and August 28,1985,forits proposition that the Exchange made false representations with reference to the policy rates upon which it justifiably relied when it renewed its policy; however, the letter dated March 8 refers to a prior rate increase already in effect, and the letter dated August 28 merely contains observations and comments on the insurance coverage rates at issue. The evidence also reflects that the Exchange’s Board of Governors did not approve the decision to increase the insurance rate until December 1985. Thus, the Exchange’s decision in December could not have served as the basis of a false representation to Transport during its consideration of a policy renewal in September. In short, Transport has not met the threshold requirement of the first element of the cause of action; there was no false representation.

The appellants assert two points in their petition for rehearing; 1) that it should have been proper cross-examination to have asked Mr. Siegler, Transport’s Chief Operating Officer, about his January 17 publication of an insurance surcharge, and 2) that a more complete, formal record was made relating to the relevancy of the insurance surcharge than this court originally considered and, consequently, the trial court’s ruling should be addressed.

The appellants’ first argument was thoroughly discussed in the text of the opinion, and arguments that are merely repetitious of those already considered by the court are inappropriate subjects for a petition for rehearing. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 731 S.W.2d 214 (1987).

With regard to the appellants’ second point, the appellants correctly point out, and the opinion reflects, that the insurance surcharge was proffered as an exhibit. Accordingly, the issue of the relevancy of the insurance surcharge was thoroughly discussed in this court’s opinion and properly resolved. We declined, however, to speculate on the effect of the trial court’s reference to the collateral source doctrine in making its decision to exclude the document. We will not do so now.


author: Jack Holt, Jr., Chief Justice.

text:
    Roger BRECKENRIDGE v. BOARD OF TRUSTEES of the Firemen’s Pension and Relief Fund for the City of Newport, Arkansas; Wayne Beard, Jr., Mayor; J. Paul Heard, City Clerk; Blanchard Cooley, Fire Chief; Norman Betts, Fireman; John Robinson, Fireman; Jim Bishop, Fireman; Claude Robinson, Fireman
    90-116
    798 S.W.2d 85
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990
    [Rehearing denied December 10, 1990.]

      Thaxton, Hout, Howard & Nicholson, by: E. Leon Nichol

      son, for appellant.

      James A. McLarty, for appellee.
   Jack Holt, Jr., Chief Justice.

On January 19, 1987, the appellant, Roger Breckenridge, was injured during the course of his employment with the City of Newport Municipal Fire Department. On March 31, 1987, Breckenridge applied to the Firemen’s Pension and Relief Fund for the City of Newport for disability retirement pursuant to Ark. Code Ann. § 24-11-819 (1987).

The appellee, Board of Trustees of the Firemen’s Pension and Relief Fund for the City of Newport, Arkansas (Pension Board), denied Breckenridge’s request on September 30, 1987. One month later, Breckenridge filed a petition for review in the Circuit Court of Jackson County. The Pension Board subsequently granted Breckenridge a hearing, which was held on December 4,1987, and again denied Breckenridge’s request for disability retirement. Ón December 31, Breckenridge appealed the Pension Board’s order of denial to the Circuit Court of Jackson County.

On October 10,1988, the circuit court ordered the Pension Board to hold another hearing at which Breckenridge could present additional medical evidence obtained since the December 4 hearing. The hearing was held on November 14,1988, and the Pension Board again denied Breckenridge’s application.

Thereafter, Breckenridge appealed to the Circuit Court of Jackson County, and a de novo trial was held on January 12, 1989. On January 5, 1990, the trial court entered its order denying Breckenridge’s application.

From that order, Breckenridge now appeals and alleges four points of error: 1) that the trial court erred in finding that no evidence of certified disability by the Pension Board’s physician was submitted that declared him to be disabled, 2) that the trial court erred in disallowing as evidence the proffered testimony of Blanchard Cooley, 3) that the trial court’s decision is erroneous because it is clearly against the preponderance of the evidence, and 4) that the trial court’s decision is inconsistent with the intent of the governing statute, section 24-11-819.

We find none of Breckenridge’s arguments persuasive and affirm.

Section 24-11-819 addresses disability retirement under the Firemen’s Relief and Pension Fund and provides as follows:

(a) (1) Whenever a person serving as a fire fighter in a city or town shall become physically or mentally disabled, . . . the board may, upon his written request, retire the person from active service. If so retired, the board shall order and direct that he be paid from the fund a monthly pension
(b) (1) No person shall be retired as provided in this section or receive any pension from the fund unless there shall be filed with the board certificates of his disability, which certificates shall be subscribed and sworn to by the person and by the city or town physician, if there is one, and by the firemen’s relief and pension fund physician.
(2) The board may require other evidence of disability before ordering the retirement and payment as provided in this section.

Breckenridge initially asserts that the trial court erred in finding that no evidence of certified disability by the Pension Board’s physician was submitted that declared him to be disabled. Breckenridge argues that the letter report from Dr. Gary S. Sapiro, the Pension Board’s physician in this case, to the City Clerk complies with the requirement that the Pension Board physician subscribe and swear that he was disabled. However, Dr. Sapiro’s letter report contains the following summary:

[W]e are presented with a 34 year old male patient who presents with probable symptoms reflecting a recurrent herniated disc at the L5-S1 level on the left side. On the other hand, Mr. Breckenridge indicates to me that he would really prefer to obtain a disability from the fire department and is not interested, at the moment, in pursuing any further neurosurgical or orthopedic evaluation. That is to say, traditionally, it is very difficult to improve a patient’s clinical status and return him to work if motivation is lacking. Since the patient primarily is interested in pursuing a disability, I suspect that in the long term, it is probably in his best interest as well as yours to proceed with a pension determination.
As explained to the patient, however, should he elect to proceed with hospitalization and surgical intervention, I would expect to return him to work within six to eight weeks thereafter. . . .

The trial court found that “no evidence of certified disability by the Defendant’s doctor was submitted to the Court that declares the Claimant to be disabled. . . . Further, the Court takes into account the fact that Claimant has had a corrective surgery and other testimony of his physical activities in a part-time job since the submission of the medical evidence.” The corrective surgery to which the trial court referred was a lumbar laminectomy performed on February 25,1988, and the reference to a part time job pertained to daily welding work, prior to the lumbar laminectomy, of two to three hours duration in a relative’s business.

The standard for review on appeal is that “ [f] indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence) . . . .” ARCP Rule 52(a). Given the nature of Dr. Sapiro’s evaluation of Breckenridge, we cannot say that the trial court’s finding that the letter report was not a certification of Breckenridge’s disability, as required by section 24-11-819, is clearly erroneous.

In the Firemen’s Relief and Pension Fund for the City of Pine Bluff, Ark. v. Hughes, 229 Ark. 730, 318 S.W.2d 145 (1958), the plaintiff never filed any written request or any certificate of disability with the Pension Board as a basis for his request for disability retirement, but the circuit court entered judgment in favor of Hughes. On appeal, we found that Hughes’s failure to comply with the statute was fatal to his suit; however, we held that the circuit court should have dismissed the case without prejudice to Hughes’s right to thereafter comply with the statute and have further proceedings.

We find Hughes, supra, to be determinative of Breckenridge’s second and third points of error in that the requirement to submit a certificate of disability from the Pension Board’s physician is a prerequisite to the allowance of a disability claim under section 24-11-819. His failure to obtain the required certificate of disability from Dr. Sapiro is, therefore, fatal to these issues.

For his fourth point of appeal, Breckenridge claims that “the trial court’s decision is inconsistent with the intent of the governing statute . . . .” To the contrary, section 24-11-819(b)(1) specifically states that “[n]o person shall be retired . . . unless there shall be filed with the board certificates of his disability, which certificates shall be subscribed and sworn to . . .by the firemen’s relief and pension fund physician. (Emphasis ours.)

As an aside to his fourth point, Breckenridge also argues in his brief that this statute is unconstitutional because it delegates unbridled discretion to a delegate doctor to determine his eligibility for disability retirement. We do not reach this issue as it was not properly preserved for appeal. See McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989).

Affirmed.


text:
    James Fenton MAYS v. STATE of Arkansas
    CR 90-120
    798 S.W.2d 75
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990

      Robert S. Blatt, by: William J. Kropp III, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On October 9, 1989, the appellant, James Felton Mays, was convicted of delivery of cocaine and sentenced to forty years in the Arkansas Department of Correction. Mays filed a timely letter with the trial court alleging ineffective assistance of counsel at trial. A new counsel was appointed for Mays, and a hearing was held on November 15, 1989. See Ark. R. Crim. P. 36.4.

Mays’s allegations were treated as a motion for new trial, which was subsequently denied. Mays now asserts three points of error on appeal: 1) that the trial court erred in its decision that he had been rendered effective assistance of counsel at trial level, 2) he was denied due process and effective assistance by new counsel at the hearing on the motion for new trial, and 3) the trial court’s response to a remark made by the prosecuting attorney during closing argument constitutes reversible error.

Mays’s arguments are without merit, and we affirm.

Mays initially asserts that the trial court erred in its decision that he had been rendered effective assistance of counsel at trial for two reasons: 1) the failure of his counsel to call a witness, and 2) the failure of his counsel to adequately object and request an admonition to the jury during the State’s closing argument.

We first note that it is a defendant’s burden to prove ineffective assistance of counsel, and it is a heavy burden because counsel is presumed effective. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986) (citing Rightmire v. State, 275 Ark. 24, 627 S.W.2d 10 (1982)). Additionally, we have adopted the standard for ineffective assistance of counsel as established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), as follows:

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Sutherland v. State, 299 Ark. 86, 771 S.W.2d 264 (1989) (citing Strickland v. Washington, supra).

Further, it is also well settled that the decision to call certain witnesses and reject other potential witnesses is largely a matter of trial strategy and that counsel must use his own best judgment to determine which witnesses will be beneficial to his client. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984).

Mays fails in showing both that his counsel’s performance was deficient and that he was prejudiced as a result. Detective Donald Howard, an undercover narcotics officer with the Fort Smith Police Department, testified that he and a confidential informant went to the Taco Bell in Forth Smith and met two men, the Hays brothers, for the purpose of attempting to purchase a rock of crack cocaine. The Hays brothers talked with Howard and the informant to satisfy themselves that they were not police and then left. They returned with a black male and a female, both of whom got into Detective Howard’s car. The couple was introduced as James and Linda, and they directed Howard to two places to procure the rock of crack cocaine. Mays was in the car with Howard for at least 45 minutes while they located the rock cocaine. Detective Howard later identified James Mays as the person to whom he had given $50.00 in exchange for a rock of crack cocaine.

Mays called on behalf of his defense one of the Hays brothers, who testified that Mays was not the man he and his brother had taken to the Taco Bell. Mays asserts that his attorney should also have called Guy Barnes as a witness in his defense.

Mays informed his attorney on the morning of trial that Barnes had been recently arrested and had admitted to him in jail the night before that he was the one who was responsible for this undercover buy. Barnes was in the building to be arraigned that morning, and Mays’s attorney arranged to have Detective Howard view Barnes before trial to assess the potential of misidentification of Mays by Detective Howard. Upon seeing Barnes, however, Detective Howard identified Barnes by name from prior association and announced that he was not the man who had sold him the rock of crack cocaine.

Further, during lunch recess, Mays’s attorney interviewed Barnes. Barnes did not admit that he had delivered the cocaine, but did admit that he had been there and knew who had made the delivery. He wouldn’t identify the person, but stated that Mays was not involved; additionally, he informed Mays’s attorney that if he was questioned, during trial, concerning the identity of the person who made the delivery, he would invoke the fifth amendment and refuse to answer.

Consequently, Mays’s attorney decided not to call Barnes as a witness because it could damage the overall credibility of the defense. Clearly, this decision was one of trial tactics, and Mays has not shown how his attorney’s performance was deficient. Mays has also not shown how the failure to call Barnes as a witness was prejudicial to the outcome of his trial. Hays testified that Mays was not the person who had delivered the cocaine, essentially to the same effect that any purported testimony of Barnes would have been. The question of credibility of a witness is one for the jury and not for the trial court. Lancaster v. Schilling Motors, Inc., 299 Ark. 365, 772 S.W.2d 349 (1989).

Mays’s reliance on Tosh v. Lockhart, 879 F.2d 412 (8th Cir. 1989), is also misplaced. There, the court of appeals remanded the case in order that a writ of habeas corpus be granted on the basis of ineffective assistance of counsel. However, the basis for the decision was that the defendant was prejudiced by the absence of alibi testimony; the court quoted the district court, when it stated:

\ . . four witnesses, three of them with no interest in the matter one way or the other, are willing to swear that petitioner was somewhere else at the time of the crime. But the jury only heard from one of these witnesses, and that witness was the one whose objectivity was most in doubt.’ We agree with the district court that there is a reasonable probability that but for Tosh’s counsel’s failure to call the . . . alibi witnesses, the result of the trial would have been different.

(Citations omitted.)

In this case, Barnes not only had some interest in the matter but his testimony would have conflicted in some respects with Detective Howard’s and Hays’s testimony. As a result, there is no reasonable probability that, but for the decision not to call Barnes as a witness, the result of the trial would have been different.

Mays’s second subpoint, dealing with his trial counsel’s failure to object to a comment made during the State’s closing argument, has not been preserved for appeal. Rule 36.4 provides in pertinent part as follows:

* * * *
The trial judge must address the defendants personally and advise the defendant that if the defendant wishes to assert that his or her counsel was ineffective a motion for a new trial stating ineffectiveness of counsel as a ground must be filed within thirty (30) days from the date of pronouncement of sentence and entry of judgment. The judge must further advise the defendant that, if a motion for a new trial is filed asserting facts sufficient to raise an issue whether his or her counsel was ineffective, a hearing will be held, and the time for filing a notice [of] appeal will not expire until thirty (30) days after the disposition of the motion, as provided in Rule 36.22.

Mays failed to assert this matter either in writing or during the trial court’s hearing on his claim or ineffective assistance of counsel. We noted in Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989), that parties on appeal are bound by the scope and nature of those objections and arguments presented to the trial court for its consideration. Mays simply did not raise this issue as the basis for his objection at the trial court level, and we will not consider arguments made for the first time on appeal. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989).

Next, Mays argues in his second point of error that he was denied due process and effective assistance of counsel at the hearing on ineffective assistance of counsel because his second court appointed counsel did not have a transcript of the previous trial, which resulted in his failure to raise trial counsel’s handling of the prosecutor’s improper argument.

While Rule 36.4 is intended to address claims of ineffective assistance of counsel predicated on a motion for new trial that alleges errors made at the trial level, the rule also requires the assertion of “facts sufficient to raise an issue whether his or her [a defendant’s] counsel was ineffective” in order for a hearing on the issue to be held.

In this case, Mays asserted six reasons as the basis for his motion for new trial: 1) the failure of his counsel to call a witness, 2) the failure of his counsel to ask certain questions at trial, 3) the inability of his counsel to verbally acknowledge his innocence, 4) lack of communication with his counsel, 5) the failure of his counsel to correctly acknowledge his case to the jury, and 6) the advice of his counsel to plea bargain.

Accordingly, Mays’s second court appointed counsel at the hearing for new trial was not apprised of any argument as to the trial counsel’s handling of the prosecutor’s closing argument. See Taylor v. State, supra. Here, second counsel’s access to the transcript was unnecessary given Mays’s reasons supporting his motion for new trial. As a result, we find neither deficient performance on the part of second counsel nor resulting prejudice.

Finally, on direct appeal, Mays claims that the trial court’s response to a remark made by the prosecuting attorney during closing argument constitutes reversible error. During Hays’s cross-examination by the prosecuting attorney, the following exchange occurred:

Q Well, how’d you find out about the case?
A Oh, we went out of town, we came back in and this was after the preliminary hearing about the same case. A lady met me at the gas station and asked me, she asked me my name and I said yes, she said are you the one that set that Fat Mays up. I said set him up. She said yeah, an undercover cop testified that you and a Lou Hays had introduced him to a Fat Mays at Taco Bell. And that’s when I went home and asked my little brother about it.

As a result, during the State’s closing argument, the prosecuting attorney made the following statement that Hays had lied on the witness stand out of fear of retribution from Mays:

And the reason why he had to lie on this particular incident is because he was directly involved in it, this dope deal. It was him and his brother that approached this car, in the first place; it was them that talked up the deal. And it was them that went back and got James and Linda to do the rest of the deal. And the reason that he has to lie in this incident is because of fear of retribution when the person, the Defendant in this case, because the Defendant thinks he got set up. And that is the reason why he would have for getting on the stand today and saying that is not the man who sold dope that day.

Defense counsel objected, “Your honor, I’m going to object. There is absolutely no evidence that my client has offered to —.” The trial court overruled the objection and stated, “Mr. Hughes [trial counsel], she [the prosecutor] has a right to interpret the evidence. The jury heard the evidence. She’s giving her interpretation of it. If the jury wants to follow her interpretation, they can. If they want to disregard it, they can.”

We reaffirmed in Williams v. State, 294 Ark. 345, 742 S.W.2d 932 (1988) (quoting Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976) (citing Simmons & Flippo v. State, 233 Ark. 616, 346 S.W.2d 197 (1961))), that [cjlosing arguments must be confined to questions in issue, the evidence introduced and all reasonable inferences and deductions which can be drawn therefrom.” The prosecuting attorney’s comment at issue is certainly inferable from Hays’s testimony; accordingly, there is no error.

Affirmed.


author: Robert H. Dudley,. Justice.

text:
    David E. HUTTON and Charlene Diane Hutton v. ARKANSAS DEPARTMENT OF HUMAN SERVICES
    90-118
    798 S.W.2d 418
    Supreme Court of Arkansas
    Opinion delivered November 5, 1990

      Williams, Schrantz & Wood, P.A., by: Stephen Lee Wood, for appellants.

      Breck G. Hopkins and Ron McLaughlin, for appellee.
   Robert H. Dudley,. Justice.

This is an appeal from a probate court order which terminates the parental rights of appellants, David and Charlene Hutton, and grants appellee, Arkansas Department of Human Services, the power to consent to the adoption of appellants’ two children, Lisa and Christina. We affirm the probate court order terminating parental rights and giving power to consent.

These parties have been before this Court previously. Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989). In the previous case we set out the history of the children’s protective custodial care in great detail. It is unnecessary to repeat that history here except to say that since early 1985 Lisa and Christina almost continuously have been in the protective custody of the Department. Repeated, intensive efforts have been made by the Department to provide the Huttons with rehabilitative services in order that custody of the children could be returned to them. Those efforts have not been successful. On July 31, 1989, the Department filed its petition for termination of parental rights.

One of the bases for terminating parental rights is a finding “that a juvenile has been adjudicated by the court to be dependent-neglected . . . .” Ark. Code Ann. 9-27-341(b)(1) (Supp. 1989). In this case, a Juvenile Court Referee in 1985 made an adjudication of dependency and neglect. Appellants argue that a 1985 finding by a juvenile court referee is not sufficient to satisfy the statute, instead, “court” can only mean “the Juvenile Division of Chancery Court.” The argument is without merit.

In Walker v. Arkansas Dept. of Human Svcs., 291 Ark. 43, 722 S.W.2d 558 (1987), we held that the exercise of jurisdiction over juveniles was not a permissible function of the county courts. In doing so, however, we also recognized the prior de facto existence of the juvenile courts. We explained that because they had exercised jurisdiction over juveniles in the past under color of state law, their proceedings and judgments would not be subject to collateral attack. Thus, our decision in Walker, id., specifically immunized from collateral attack the order finding Lisa and Christina dependent-neglected.

Statutory construction requires a common sense approach. Keith v. Barrow-Hicks Ext., Imp. Dist., 275 Ark. 28, 626 S.W.2d 951 (1982). It would defy common sense to find that the legislature intended to invalidate or exclude prior adjudications of dependent-neglected which were decided by predecessor courts merely by defining the term “court” in terms of the Juvenile Division of the Chancery Court.

In short, construing the statute using a common sense approach, and giving effect to the immunization afforded such predecessor orders by Walker, it is clear that the lower court was correct in relying upon the 1985 order finding dependent-neglected.

Affirmed.