text:
    Herbert HOGG, d/b/a Jo-Cal Oil Company v. Tommy Lynn JERRY, et al.
    89-119
    773 S.W.2d 84
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      Bramblett & Pratt, by; James M. Pratt, Jr., for appellant.

      Spencer, Spencer, Depper & Guthrie, by: J. V. Spencer IIP,
      and Knobles & Klingemann, Inc., for appellee.
   Steele Hays, Justice.

In 1983 Herbert Hogg, an independent oil producer, purchased an oil lease in the Lawson Field of Union County. As lessee, Hogg acquired a 75 % working interest in any oil production from this property. Hogg sold one half of the lease to Nolan Haines and, in order to raise money for drilling, sold fractional interests to the appellees.

Appellee Tommy Lynn Jerry, an employee of Lion Oil Refinery, bought 2.5 % of Hogg’s 75 % interest, as did appellee Wayne Blackmon, a poultry farmer. Additionally, Hogg sold appellees Randy George and Alan Powers, gas pipeline salesmen, each 5% of the working interest. Dr. Chester Spencer, an orthodontist and former petroleum engineer, also an appellee, purchased 10% of Hogg’s working interest. Under the terms of the purchase, each of the appellees was required to pay their proportionate share of the drilling and completion costs of the wells. Hogg retained 12.5% of the working interest but was responsible for none of the drilling costs, in lieu of his time, expertise and management skills. Nolan Haines received 12.5 % of the working interest and paid none of the drilling costs.

Stanley #2, the first well drilled produced oil, although at a declining rate. The second well, Stanley #3, produced no oil and was converted into a salt water disposal well. The third well, Hill A-l, produced no oil at the Travis Peak formation. In the written agreement with the appellees, Hogg and Haines reserved the Meakin formation of Hill A-1, a formation lying above the Travis Peak, and subsequently, drilled an oil producing well at this level.

The Jo-Cal Oil Company, a Hogg family partnership, operates and manages Herbert Hogg’s oil properties. Disagreements developed between Hogg and the appellees relating to Hogg’s operations and drilling decisions. The appellees eventually stopped paying their operating bills. Hogg, under the name of Jo-Cal Oil Company, filed suit to recover monies claimed to be due from the appellees. The appellees counterclaimed, seeking rescission and money damages for violation of the Arkansas Securities Act, namely, the sale of unregistered and nonexempt securities. Appellees, George, Powers, and Spencer counterclaimed against Hogg, individually and as a general partner of Jo-Cal, and against Nolan Haines and Jo Ellen Hogg and Amy Kassos, as general partners of Jo-Cal Oil Company.

The chancery court held that Hogg was liable to appellees Jerry, Blackmon, Spencer, George, and Powers and granted recision of their contracts, directing Hogg to repay the appellees their investment plus interest and attorney’s fees. Nolan Haines was held jointly and severally liable to appellee Spencer but not to appellees Powers and George. Jo Ellen Hogg, Amy Kassos and the Jo-Cal Oil Company were not found to be liable to any appellee. Appellant Hogg’s appeal arises from these rulings. Additionally, Spencer, George, and Powers filed a cross-appeal against Hogg and Haines, and against Jo-Cal and its general partners. On cross-appeal, George and Powers contend that Nolan Haines should be deemed jointly and severally liable to them. Having considered the arguments, we affirm on appeal and cross-appeal.

I

The Chancery Court Did Not Err in Granting the Appellees Rescission of Their Contracts and Awarding Damages Pursuant to the Arkansas Securities Act.

It is unlawful to offer or to sell any security in this state unless it is registered under the Arkansas Securities Act or exempted from registration. Ark. Code Ann. § 23-42-501 (1987). The sale of a fractional percentage of a “working interest” in an oil lease constitutes the sale of a security. Ark. Code Ann. § 23-42-102 (13) (Supp. 1987); McMullan v. Molnard, 24 Ark. App. 126, 749 S.W.2d 352 (1988). Civil liability attaches to a seller of unregistered securities and the purchaser of the unregistered securities may sue either at law or in equity to recover the consideration paid for the security, together with any interest at 6 % from the date of payment, and costs and reasonable attorneys’ fees, less the amount of any income received on the security. Ark. Code Ann. § 23-42-106 (1987).

The parties stipulated that Hogg neither registered nor filed proof of exemption with the securities commissioner regarding the working interests in the oil wells sold to the appellees. Hogg states that he had no knowledge of the securities law, yet “ignorance of a duty to register securities, or to procure their exemption, can in no way excuse the failure to do so.” Robinson v. White, 635 F. Supp. 851 (W.D. Ark. 1986). Therefore, a clear violation of the Arkansas Securities Act occurred. Appellant Hogg relies on the affirmative defenses of laches and estoppel to bar the appellees’ recision of their contracts.

Hogg cites Schultz v. Rector Phillips-Morse, Inc., 261 Ark. 769, 552 S.W.2d 4 (1977), supporting his estoppel argument. Although this court based its findings upon the theory of estoppel and laches, the facts of Schultz bear little resemblance to the facts here. The plaintiffs in Schultz were both licensed stockbrokers and served as vice-presidents of Stephens, Inc. These men invested in an apartment complex project primarily as a tax shelter. Not until the IRS disallowed a substantial portion of the plaintiffs’ claimed deductions on their tax returns, did the plaintiffs seek recision of their joint venture purchases asserting that the sale of these interests constituted the sale of unregistered securities. After taking personal income tax deductions and enjoying the benefits of such deductions, the plaintiffs sought a refund of the purchase price because of noncompliance with registration requirements of the Arkansas Securities Act.

Here, unlike Schultz, the only investor who maintained any knowledge of investments, particularly oil and gas investments, was Spencer. Jerry worked in an asphalt plant and had no previous experience with investments. Likewise, Blackmon, a poultry farmer, had no prior experience in oil and gas investments. Both George and Powers were oil and gas pipeline salesmen, but neither had invested previously in oil and gas ventures, nor did either know anything about petroleum geology.

This court in Schultz expressly limited its holding as to the finding of estoppel and laches:

In making this finding of estoppel and laches we are not in any way opening the door to schemes of promoters of unregistered and nonexempt securities whereby they can trap investors into waiving their rights by receiving dividends or taking tax benefits from their investments. Rather, it should be emphasized that these findings are made solely on the basis of the particular circumstances presented by this case. [Our emphasis.]

The particular circumstances referred to in the opinion certainly included the sophisticated background of the purchasers as well as their extensive knowledge of the investment field.

The question of whether the conduct of the purchaser is sufficient to bar the rescission of the sale depends upon the facts in each case. Some of the determinative factors in securities registration cases include (1) participation in the organization and management of the corporation, (2) acceptance of dividends by the buyer, (3) the buyer’s knowledge of the violation at the time of the sale, (4) the reliance of the seller on the buyer’s conduct, and (5) the experience and sophistication of the buyer. Note, A Definition of Investment Contracts and Equitable Defenses to Suit for Recision for Non-Registration under the Arkansas Securities Act, 1 UALR L.J. 366 (1978). In this case the appellees satisfy none of the factors listed above, except for having received some marginal return on their investment.

In addition to the estoppel argument, appellant Hogg relies on the doctrine of laches. Hogg contends that the appellees waited an unreasonable period of time before attempting to rescind the sale. But laches involves more than mere delay in pursuing a remedy; the delay must be such that it works a disadvantage to another. 2 Pomeroy, Equity Jurisprudence 419 (5th Ed. 1941).

Appellee Spencer became concerned over Hogg’s operations when Stanley §3 was converted into a salt water disposal well. The appellees continued to receive expense statements from Stanley §3, but received no compensation for the water disposed of in this well. Appellee Spencer alerted the other investors and wrote Hogg a letter demanding information on August 20,1984. After an attempt to settle these differences failed, appellees Spencer, George, and Powers retained legal counsel in Texas in March, 1985, and filed suit for recision in August, 1985. The Arkansas Chancery Court enjoined these appellees from proceeding in Texas on September 12, 1986, and they filed their counterclaim in Arkansas on December 3, 1986.

The remaining appellees filed a counterclaim against appellant Hogg on May 22,1986. Only eight months elapsed from the initial suspicion of possible fraud [August, 1984] until legal counsel was retained, and three months later legal action commenced in Texas. No excessive delay occurred, and legal action occurred well within the five year statute of limitations. Ark. Code Ann. § 23-42-106(3)(f) (1987). no excessive delay in pursuing a remedy existed, and certainly Hogg and Haines were not disadvantaged by any delay, as they both continued to enjoy the benefits of their 12.5 % interest on Stanley #2, and the 100 % interest in Hill A-l (a productive oil well drilled at the Meakin formation.) Therefore, we find the laches argument meritless.

II

The Chancery Court Did Not Err in Finding Nolan Haines Jointly and Severally Liable for the Damages Awarded to Appellee Spencer.

Ark. Code Ann. § 23-42-106(c) (1987) defines those persons who may be jointly and severally liable to the purchaser in addition to the seller of the unregistered, nonexempt securities. The statute provides that a person who “controls” a seller of securities, as well as “partners,” “officers,” and “directors” may be jointly and severally liable with the seller, and such individuals need not be found to have materially aided in the sale. Mitchell v. Beard, 256 Ark. 926, 513 S.W.2d 905 (1974). Also persons who occupy a similar status to the partners, officers, or directors, or perform a similar function as the partners, officers, or directors, may also be liable to the purchaser. In addition, every “employee,” “broker-dealer,” or “agent” who “materially aids” in the sale is jointly and severally liable with and to the same extent as the seller.

The chancery court found that Nolan Haines materially aided and abetted Herbert Hogg in procuring the investment of Dr. Spencer. Nolan Haines’ liability arises from his status as an agent of Hogg. An agent is “any individual. . . who represents an issuer in effecting or attempting to effect purchases or sales of securities.” Ark. Code Ann. § 23-42-102(2) (Supp. 1987). Hogg qualifies as an “issuer” under the Arkansas Securities Act with respect to fractional undivided interests in oil, gas, or other mineral rights. The term “issuer” means the owner of the right or of any whole or fractional interest in the right who creates fractional interests therein for the purpose of the offering. Ark. Code Ann. § 23-42-102(8)(D) (Supp. 1987).

Having found that Haines was an agent, we must now determine if his acts “materially aided” in the sale of the securities for liability to attach. In his deposition, Nolan Haines admits that he materially aided in the sale of the securities to Dr. Spencer. Haines represented an issuer (Hogg) in giving “Dr. Spencer materials which I received from Herbert Hogg.” Moreover, Haines stated, “the only investor I helped to get was Dr. Spencer.” The circumstances indicate that Nolan Haines and Dr. Spencer were “fast friends,” and that Dr. Spencer trusted Nolan Haines. Experience suggests that as both Dr. Spencer and Nolan Haines lived in Grand Prairie, Texas, and as Hogg and Haines needed to obtain investors, that the actions of Haines in bringing a prospectus to Dr. Spencer’s office, a former petroleum engineer and oil and gas investor, and promoting his participation in the venture, constituted “materially aiding” in the selling of securities to Dr. Spencer.

Recently, in Quick v. Woody, 295 Ark. 168, 747 S.W.2d 108 (1988), this court was faced with deciding if a person qualified as an agent under Ark. Code Ann. § 23-42-102(2) (1987), and if this agent then materially aided in the sale of securities. Although the actions of Haines are not as extensive as those in Quick, the circumstances of the two sales were quite different. Hazel Quick did not know her potential investors, nor do the facts indicate whether her potential investors had any experience in prior investments, as did Dr. Spencer. Hazel Quick’s sales pitch was aimed toward a broad range of possible investors, whereas Haines was targeting a friend, knowledgeable about oil and gas investing.

The appellant relies on Titan Oil and Gas v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974), a case interpreting the phrase “materially aids in the sale of securities.” Titan Oil, the seller of securities, attempted to recover contribution from two of its representatives for aiding in the sale of unregistered securities. However, unlike the case at bar, the sales pitch by the various Titan representatives was not as directed or focused as the procurement of Dr. Spencer. Furthermore, in Titan Oil the court noted that the determination of whether a representative materially aids a sale is one of fact, the resolution of which depends to some extent on the inferences drawn from the testimony, and the court could not say that the chancellor’s findings were clearly erroneous. Such is the case before us.

CROSS-APPEAL

III

The Chancery Court Did Not Err in Finding Nolan Haines Was Not Jointly and Severally Liable to Appellees George and Powers.

The chancery court found that Nolan Haines was liable to appellee Spencer. The basis for the court’s holding was that Haines acted as an agent for Hogg, and as an agent he “materially aided” in the sale by presenting the prospectus to Dr. Spencer and discussing the investment. However, Nolan Haines testified that he neither knew, met, nor communicated with appellees George and Powers. Under these circumstances it can hardly be said that Haines materially aided in the sale of securities to these two appellees.

The appellees argue that because the interests involved are fractional, undivided interests in an oil lease, that Haines, as one half owner with Hogg, necessarily becomes a seller of these fractional security interests by statutory definition. The Arkansas Securities Act fails to define a “seller” of securities. However, the act specifically defines an “issuer” of fractional interests in oil rights as a person who owns the right or of any whole or fractional interest in the right, who creates fractional interests therein for the purpose of the offering. Both Hogg and Haines own fractional interests in the oil lease.

However, only Hogg created additional fractional interests from his 75% working interest and offered these interests for sale. Therefore, only Hogg constitutes an issuer and seller of securities.

Alternatively, appellees George and Pov/ers argue that Hogg and Haines were partners, and as a partner Haines becomes jointly and severally liable to them. In setting out the rules for determining the existence of a partnership, the Uniform Partnership Act states that “part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of property . . Ark. Code Ann. § 4-42-202(2) (1987). Hogg and Haines deny the existence of a partnership and the evidence in the record fails to establish that a partnership existed. Failing to find that Haines was an agent who materially aided in selling the securities to George and Powers, and failing also to find that Haines and Hogg were partners, we affirm the chancellor.

IV

The Chancery Court Properly Held That Neither the Jo-Cal Oil Company Nor its Partners Were Jointly and Severally Liable to Appellees Spencer, George, and Powers.

The appellees contend that the partnership of Jo-Cal Oil Company and its general partners should be jointly and severally liable to the appellees for the sale of the unregistered, nonexempt securities. Jo-Cal exists to manage and service oil wells. The appellees concede that Jo-Cal was not the actual seller of the securities in question. But, if Jo-Cal was not the seller of the securities, in order to be held jointly and severally liable to the purchasers, Jo-Cal must qualify as either (1) one who controls a seller, (2) a partner, officer, or director of the seller, (3) a person occupying a similar status as a partner, officer, or director, (4) a person performing a similar function as a partner, officer, or director, or (5) an employee who materially aided in the sale, (6) a broker-dealer who materially aided in the sale, or (7) an agent who materially aided in the sale.

The appellees argue that Jo-Cal materially aided in the sale of each investment, yet Jo-Cal meets neither the statutory definition of an employee, an agent, or a broker-dealer. In their reply brief, the appellees suggest that Jo-Cal occupied a status similar to a partner and upon that basis should be held jointly and severally liable to the appellees. The evidence in the record fails to prove that similarity, rather, testimony shows that Jo-Cal was the manager of Hogg’s wells.

V

Petition for Attorney’s Fees on Appeal

Ark. Code Ann. § 23-42-106(a)(1) (1987), provides for the recovery of reasonable attorneys’ fees for the purchaser of unregistered, nonexempt securities. Appellees have requested an additional award for this appeal. We allow the sum of $2,000.

For the reasons stated, the decree is affirmed.

       A working interest is the operating interest under an oil and gas lease. The owner of the working interest has the exclusive right to exploit the minerals on the land. Williams & Meyers, Oil and Gas Terms (1987).


source: Caselaw Access Project

author:
Steele Hays, Justice.
      Steele Hays, Justice.

license: Public Domain

text:
    Charles D. RAGLAND, Revenue Commissioner, Revenue Division, Department of Finance and Administration v. PITTMAN GARDEN CENTER, INC. and Donald M. Pittman d/b/a Pittman Nurseries Company
    89-59
    772 S.W.2d 331
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989
    [Supplemental Opinion on Denial of Rehearing October 9, 1989.]

      John H. Theis, Joe Morphew, Philip Raia, Robert L. Jones, William E. Keadle, Ricky L. Pruett, and David B. Kaufman, by: Cora L. Gentry, for appellant.

      Anderson, Crumpler & Bell, P.A., for appellee.

      Hickman, J., dissents.

   Steele Hays, Justice.

Arkansas law requires every employer to deduct and withhold state income taxes from the wages paid to employees. An exception is made “for agricultural labor,” which is defined as including all services performed “on a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity . . ,” (Our emphasis.) “Farm” is defined as including nurseries, greenhouses or similar structures used in raising agricultural or horticultural commodities.

Pittman Garden Center, Inc., and Donald M. Pittman, doing business as Pittman Nurseries Company, appellees, operate a nursery, and supply horticultural products and labor to Pittman Landscape Planners, Inc., a landscaping business in Magnolia, Arkansas, serving customers in southern and central Arkansas, as well as northern Louisiana. Employees of the appellees are engaged in raising horticultural commodities at appellees’ nursery and are also engaged in landscape work for customers of Pittman Landscape Planners, Inc.

Appellant, Commissioner of Revenues, conducted income tax withholding audits of appellees’ operations between January 1,1982, and April 30,1985. Theaudits resulted in the assessment of additional withholding taxes.

Both appellees protested pursuant to the Arkansas Tax Procedure Act, contending the wages paid to their employees were exempt from withholding as “agricultural labor.” On administrative review the assessments were sustained in their entirety and appellees filed suit in the chancery court of Columbia County. The chancellor held that the appellees were exempt from the requirements of state law for the withholding of income taxes, since appellees “were engaged in agriculture as defined by Arkansas law and the planting of products they have produced on private property is incidental to their farming operation.” The Commissioner appealed and we reversed. See Ragland v. Pittman Garden Center, et al., 293 Ark. 533, 739 S.W.2d 671 (1987) (Ragland I).

Our decision in Ragland I explained that under Arkansas law “agricultural labor” is defined by referring to the federal social security law (FICA), where that term is defined. 26 U.S.C. § 3121(g) (1982). Noting that the exemption for wages paid to “agricultural labor” is not applicable to wages paid for landscaping, we posed the issue as being: How is the agricultural exemption affected when the duties of a particular employee consist of both agricultural and non-agricultural labor? The answer was found in 26 U.S.C. § 3121(c) (1982), which provides that the services performed by such employee “during one half or more of any pay period” determines the nature of the employment. Hence, if employees of the appellees devote half or more of their time to agricultural labor during any pay period (a period of not more than thirty-one consecutive days) their wages are exempt from withholding. If, however, less than one half of such services are devoted to agricultural labor, then the exemption does not apply and the wages are subject to withholding taxes in accordance with the regulations of the Commissioner.

We remanded the case to the trial court to determine what percentage of the services performed by appellees’ employees was agricultural and what percentage was landscaping consistent with our opinion in Ragland I. On remand the chancellor held that landscaping, a non-agricultural activity, began after the horticultural products were delivered to the customers’ premises. On that basis the chancellor excluded the time required to transport the employees and horticultural products to the premises of the customer for the landscape work.

The Commissioner has again appealed. He submits that the non-agricultural labor should commence not when the employees arrive at the landscaping site, but when they leave the nursery to engage in activity that is not agricultural. We agree.

The chancellor elaborated on his conclusion in these words: “In said decision [referring to our opinion in Ragland I] it was determined that only after arriving with the horticultural products at the customer’s premises (sometimes called the terminal market) for consumption did the employees engage in non-agricultural work.” (Our emphasis.)

In seizing upon that language the chancellor read something into the Ragland opinion that we had not decided, nor been asked to decide. The issue in Ragland I did not involve, even peripherally, a consideration of the time spent in the transportation of employees between agricultural and non-agricultural job sites, but whether the agricultural exemption applied to employees whose services during any given pay period involved both agricultural and non-agricultural labor. It should be noted that the quoted language by the chancellor stresses the word “only,” suggesting that in Ragland I we were making a calculated decision to exclude the time spent in transportation in determining whether non-agricultural services equaled or exceeded one half of a pay period. No such inference was intended by our opinion in Ragland I, as that opinion in its entirety makes clear, and the word “only,” it should be noted, does not appear in the passage alluded to. We were simply pointing out that work at the nursery was agricultural (and therefore exempt), whereas work at the premises of the landscape customer was non-agricultural and not exempt. The time spent between the two was not in any sense an issue either before the trial court or on appeal.

In defense of the decree, appellees contend the law of the case, as established in Ragland I, is that “the clock for time spent in agricultural labor stops when the employee arrives at the ‘terminal market’, i.e., the customer’s premises, with the horticultural products, and starts to run again at the time the employee leaves the customer’s premises.” We could readily agree with that statement had that been the issue in the first appeal. But, as we have noted, it was not the issue we were deciding and was not, therefore, either the intended, nor inadvertent, holding of the case. Under those circumstances, the law of the case doctrine has no application. Dickson v. Board of Directors of Long Prairie Levee District, 151 Ark. 22, 235 S.W. 45 (1921). In Dickson we rejected a similar contention in reversing the chancellor a second time, using this language:

In our judgment a decision rendered on appeal determines only such questions as are presented for decision and are decided as essential to a just disposition of the pending appeal. The language of a decision is always to be understood by applying it to the facts of the case decided and construing it with reference thereto. Little Rock Trac. & Elec. Co. v. Kimbro, 75 Ark. 211.

Nor was the time issue decided by the chancellor in the initial trial of this case. Had it been, appellant might well be confronted with the doctrine of the law of the case for failure to raise the question in the first appeal. Alexander, Adm. v. Chapman, et al., 299 Ark. 126, 771 S.W.2d 744 (1989); Meyers v. Meyers, 214 Ark. 223, 216 S.W.2d 54 (1949).

Appellant’s second point of error concerns the chancellor’s reference to the appellees’ proof as being “clear and convincing,” whereas the correct standard of proof required of a taxpayer in establishing an entitlement to an exemption is “beyond a reasonable doubt.” Qualls v. Georgia-Pacific Corporation,, 269 Ark. 426, 602 S.W.2d 646 (1980).

777 S.W.2d 222

The appellees question appellant’s right to raise that issue in this appeal, since the same wording appears in the decree from which the first appeal was taken but was not challenged by appellant in that appeal. In response, appellant cites a segment of his brief in the first appeal, but we find only a passing reference to the language of the Qualls case. Nothing in appellant’s first appeal can be construed as raising this issue as a point for reversal and if that were the determinative factor for reversal, we would likely affirm the case. However, since the case is necessarily reversed on the first point, we see no need to decide whether the chancellor is locked into an erroneous standard under the law of the case doctrine. The difference between evidence that is “clear and convincing,” as opposed to “beyond a reasonable doubt,” may be little more than semantic and we doubt that it will have any practical effect on the outcome of this case. It is clear, or should be, that the law puts a pronounced burden on the taxpayer to establish entitlement to exemption from tax laws and regulations by proof that is conclusive.

Since the record presented is inadequate to enable us to determine whether the employees of the appellees are engaged in agricultural labor for at least half of any pay period, excluding periods of transportation, the case is again remanded to the chancellor to make that determination.

Reversed and remanded.

Hickman, J., dissents.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING OCTOBER 9, 1989

Steele Hays, Justice.

In our opinion of June 26, 1989, we rejected appellees’ argument that the law of the case as established in Ragland I bars appellant’s contention in this case {Ragland II) that the chancellor erred in holding that only after the employees arrived at the customer’s premises did the employees engage in nonagricultural work.

Appellees’ petition for rehearing adamantly insists the issue was raised in the first case. In response, appellant argues, just as adamantly, that it was not. Having carefully reviewed the record and briefs of the first case, we find nothing in the pleadings, the testimony, the decree of the chancellor or our opinion in Ragland I suggesting that in determining whether appellees’ employees came within the definition of “agricultural labor” the chancellor considered time spent in transporting such employees from their regular job site to the premises of appellees’ customers, and therefore, the petition for rehearing is denied. We do agree with appellees that agricultural labor may include time spent in delivering products to market [26 U.S.C. § 3121(g)(4)(A)], provided, however, that the primary purpose of the transportation is the delivery of the product to market and is not merely incidental to landscaping services. See 26 C.F.R. § 780.206. Inasmuch as that issue has not been developed, we make no attempt on this record to determine whether the underlying purpose is the delivery of horticultural products to market, or providing landscaping services to customers of appellees.

Petition for rehearing denied, supplemental opinion issued.

Hickman, J., dissents.

       Ark. Code Ann. § 26-51-902(1) (1987). “Agricultural labor” means agricultural labor as defined in 26 U.S.C. § 3121 (g), on January 1, 1967; and see Ragland v. Pittman Garden, et al., 293 Ark. 533, 739 S.W.2d 671 (1987).

       Ark. Code Ann. § 26-18-101 et seq. (1987).


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Charles ROLARK v. STATE of Arkansas
    CR 88-209
    772 S.W.2d 588
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      David W Malaby, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Kay J. Jackson Demailly, for appellee.
   David Newbern, Justice.

Charles Rolark, the appellant, was convicted, after a jury trial, of aggravated robbery and theft of property valued over $2500. He was sentenced to imprisonment for 50 years for aggravated robbery and ten years for theft. He raises three points of appeal. He contends the prosecution should not have been allowed to recall the victim to the witness stand during the state’s case in chief. We find no error because the court did not abuse its discretion in allowing the victim to be recalled. He also contends his sentence should not have been enhanced in accordance with the habitual offender statute because the three prior felony convictions cited were all a part of one continuing course of conduct and he was placed on probation. We agree with the trial court’s determination that the three convictions were for separate offenses, and thus no error was committed in allowing them to be used in determining the applicability of the habitual offender statute despite Rolark’s having been placed on probation. Finally, he argues the theft of property was part of his continuous course of conduct in committing the aggravated robbery, and thus he should have been convicted of only one offense. We hold that theft and aggravated robbery are separate offenses for which a defendant may be convicted even though they arise out of one incident. The conviction is affirmed.

The evidence of Rolark’s guilt was overwhelming. Testimony showed that Rolark entered the “Cuff and Collar” clothing store in Texarkana. He accosted the sales clerk with a knife and forced her into the bathroom where he straddled her and demanded her jewelry which she gave to him. She was wearing rings worth approximately $13,000. He then stabbed her nine times and cut her throat with the knife. The victim survived and identified Rolark as her assailant.

Rolark was arrested the day following the incident and confessed to the crimes. At the trial two pawn brokers testified they pawned rings for Rolark who presented his driver’s license to them as identification.

1. Recall of witness

After the victim had testified, the prosecution played for the jury a tape recording of Rolark’s statement to the police in which he said he stabbed the victim after she had called him a name which amounted to a racial slur and spat on him. The prosecution then recalled the victim to the stand over Rolark’s objection. She denied having used the racial epithet, and she denied having spat on Rolark.

Rolark’s brief acknowledges that Ark. Code Ann. § 16-43-703 (1987) gives the trial court the authority to permit the recall of a witness and that we will not reverse the judge’s decision to do so unless an abuse of discretion is shown. Holmes v. State, 257 Ark. 871, 520 S.W.2d 715 (1975); Whittaker v. State, 173 Ark. 1172, 294 S.W. 397 (1927). He contends it was an abuse of discretion to allow the victim to be recalled after she had been allowed to remain in the courtroom during the playing of the tape recorded confession. He also contends the state knew what was in the confession and could have examined the victim about it while she was on the witness stand earlier. He argues he was thus denied a fair trial and due process.

Rolark does not argue that the victim had no right to be in the courtroom during the playing of his statement. His abstract of the record shows that there was a motion, presumably made by the prosecution, to allow the victim to remain in the court, but it does not show whether the motion was granted or denied. There was no unfair prejudice in allowing the victim to be recalled after she had heard Rolark’s statement. As he says, his statement was not a secret, and she could have been asked questions about it earlier. The same contradictions would have been achieved either way.

The abstract shows that the only objection made to the prosecution recalling the victim was that it was not proper to allow “rebuttal” because the defense had not put on its case. The court correctly observed that the prosecution was not putting the victim back on the stand for the purpose of rebuttal, and allowed her to be recalled specifically to impeach the statement of the defendant. No due process argument was made to the trial court, and we will not consider even a constitutional argument for the first time on appeal. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980); Shepherd v. State, 270 Ark. 457, 605 S.W.2d 414 (1980).

While the question of the admissibility of the victim’s testimony for the purpose of impeaching part of the statement of a defendant presented by the state would have been new to this court, we need not decide it here because it is not argued. Even if the testimony had been inadmissible and had been objected to on that basis, we would not reverse on the point, as it is wholly collateral to the issue of Rolark’s guilt or innocence, and the evidence of guilt was, again, overwhelming. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1996); Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985).

2. Prior convictions

a. Continuing conduct

The three prior convictions used to enhance Rolark’s sentence for aggravated robbery and thus sentence him to 50 years imprisonment rather than the ten to 40 years authorized for the offense, were for three instances of breaking and entering. These were vending machine break-ins, two of which occurred on October 1, and the third early on the morning of October 2,1986. Rolark argues these convictions resulted from a continuing course of conduct which should only amount to one conviction for enhancement purposes.

As the state argued to the trial court and argues in its brief here, the records of the three convictions show that they occurred in different places although they were close to each other in time. They were three separate offenses. In Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986), a case we reversed on another ground, we were faced with a similar argument. Although our response was obiter dictum, we regard it as dispositive of the argument here. Justice George Rose Smith, writing for the court, pointed out that the criminal code, Ark. Stat. Ann. § 41-105(1)(e) (Repl. 1977), which is now codified as Ark. Code Ann. § 5-1-110(a) (1987), provides that “when the ‘same conduct’ of the defendant may establish the commission of more than one offense, the defendant may be prosecuted for each offense.” He wrote further that:

[t]he Commentary explains that the same conduct is intended to connote the same criminal transaction. The defendant may not be convicted of more than one offense if the conduct constitutes an offense defined as a continuing course of conduct. The Commentary explains that a continuing offense is one such as nonsupport or promoting prostitution. [289 Ark. at 193, 710 S.W.2d at 203]

See also Rowe v. State, supra.

Three break-ins occurring close together in time are not continuous in the sense that nonsupport or promoting prostitution are. By contrast, each offense has a beginning and an end after a short duration, whereas nonsupport, for example, is not a single act of short duration separate from each subsequent failure to pay support. Nor is this case like Tackett v. State, 298 Ark. 20, 766 S. W.2d 410 (1989), in which we were confronted with a single act which resulted in several crimes and where we held that the definition of “habitual” should not include a single act.

We hold that breaking and entering at three separate locations constitutes three separate offenses for the purpose of showing that a defendant has been convicted of more than one but less than four felonies and thus should have his sentence enhanced in accordance with Ark. Code Ann. § 5-4-501(a) (1987).

b. Probation

Rolark also argues that, because his previous convictions resulted in his having received probation they should not be counted for enhancement purposes. He has cited no authority for this argument, and we are aware of none. We do not regard the argument as convincing. The fact that he was granted probation on the prior convictions does not lessen the fact that they were convictions, and that is the criterion of § 5-4-501 (a).

3. Aggravated robbery and theft as continuous conduct

As his final point, Rolark argues that the aggravated robbery and the theft of property in this case were parts of the same continuous course of conduct and thus he should have been convicted of no more than one offense. He contends that the impulse to steal was part of the robbery and he had no intent to commit two offenses.

Theft is not a lesser offense included in aggravated robbery. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985). They are two separate offenses. Aggravated robbery was committed when Rolark used force with the purpose of committing theft. Ark. Code Ann. § 5-12-103 (1987). Theft was not committed until he took the victim’s property. Ark. Code Ann. § 5-36-106 (1987). Nor were these two offenses parts of, as explained above, a continuing course of conduct like nonsupport.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Aggravated robbery cannot be committed without theft of property. Theft of the object of the robbery is an integral part of the offense. The majority opinion takes another step in its effort to create as many crimes as possible out of the same criminal act. This court should not attempt to assist the legislature in creating more criminal statutes. There are too many laws already. It should be the function of this court to see that those laws already on the books are enforced fairly and justly. If the purpose is to get another conviction out of this one incident, it could have been accomplished by charging the appellant with assault in the first degree because that separate crime was clearly committed in addition to the act of armed robbery.

Another mistake made by the majority is its approval of the practice of allowing the state to abide only by the rules it chooses. I refer to the incident where the victim was allowed to testify and then remain in the courtroom while the prosecution played a confession tape to the jury. The victim was then called back to the stand and contradicted the taped testimony of the appellant. The witness had remained in the courtroom with the full knowledge and consent of the prosecution. It is not contended that the prosecutor was not aware that the statements which the victim was called to rebut were going to be presented. There was no surprise at all.

The majority relies on Ark. Code Ann. § 16-43-703 (1987), for the authority of a trial judge to allow a witness to be recalled at any point in the proceedings. That is not what the code permits. The majority opinion cites Holmes v. State, 257 Ark. 871, 520 S.W.2d 715 (1975), and Whittaker v. State, 173 Ark. 1172, 294 S.W. 397 (1927). The Holmes case simply held that it was not error to permit a witness to be recalled to the stand. There is nothing in the opinion which indicates that the witness was called other than in a proper and orderly rebuttal. Furthermore, the court sustained the defense objection to all of the additional testimony of the recalled witness. The Whittaker case is even less on point because it involved the refusal of the trial judge to allow the reopening of the case to receive the testimony of a witness after the case had been submitted to the jury. Since the witness was not allowed to testify and this court affirmed the decision of the trial court, I do not see that it stands in support of the majority opinion at all.

I don’t care what nice name you use in dismantling the normal court procedure; it amounts to destruction of well established rules which have proven effective over the years. The witness in the present case was obviously called to rebut the recorded testimony of the appellant as soon as the tape had been played in order to enhance her persuasive power with the jury. It does not matter that it was not labeled as rebuttal testimony. The majority pretends not to rule on this issue because it was not properly preserved. Nevertheless, the next time it comes up it could be in a case where the prosecution presents its own case and then a part of the defendant’s case and then rebuts it before the defense is allowed to proceed at all. The rules of procedure deserve more respect than this.

The bench and bar of this state deserve the right to know the rules of criminal procedure and how to conduct a trial. The haphazard manner in which the state presented the testimony of the witness in rebuttal is but a prelude to what may happen next. For the sake of order and uniformity we ought to let it be known here and now that it is not permissible to allow a witness to testify before the jury, remain in the courtroom while other testimony is presented, and then be recalled to rebut contradictory testimony, whether the witness be for the plaintiff or the defendant.


author: Tom Glaze, Justice.

text:
    Dorenda Gail FRETWELL v. STATE of Arkansas
    CR 89-39
    772 S.W.2d 334
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      Jack M. Lewis, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

The appellant, Dorenda Gail Fretwell, was charged with capital murder in the aggravated robbery and shooting death of Sherman Sullins. Upon advice of her attorney, she pleaded guilty to first degree murder and was sentenced to life imprisonment. She later filed a Rule 37 petition for post-conviction relief, and the trial judge appointed new counsel to represent her. After a hearing, the trial court denied her petition. Appellant now appeals from the order denying her relief, and for reversal, she contends that (1) her sentence was imposed in violation of the constitutions and laws of the United States and Arkansas; (2) her guilty plea was not made voluntarily, knowingly and intelligently; and (3) her guilty plea was not made with effective assistance of counsel. We agree that appellant’s guilty plea was not made with effective assistance of counsel, and therefore, reverse and remand on that basis.

In alleging ineffective assistance of counsel, appellant has the burden of showing that the advice she received from her attorney was not within the range of competence demanded from attorneys in criminal cases. Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986). Appellant must show that her counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that but for counsel’s unprofessional errors, she would not have pled guilty but would have insisted on going to trial. Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988); Flaherty v. State, 297 Ark. 198, 761 S.W.2d 167 (1988).

Appellant’s most serious allegation on this point is that her guilty plea was given because of erroneous advice from her attorney regarding accomplice liability. The evidence was uncontradicted that appellant and her husband, Bobby Fretwell, along with an acquaintance named Steve Rigsbee, left Texas, driving a stolen truck, and were traveling through Arkansas when the truck broke down near the town of Marshall. Bobby Fretwell left to find a telephone, but the appellant and Rigsbee stayed and fell asleep in the disabled truck. Fretwell returned in a different truck, and the three continued on their journey. It was sometime after they resumed their journey that Fretwell informed the appellant and Rigsbee that he had killed a man and stolen the man’s truck. The trio continued their travel which led to Nebraska, where they committed an armed robbery. They were eventually arrested in Wyoming.

At the hearing on the Rule 37 petition, appellant’s former attorney testified and her testimony was consistent and in agreement with the foregoing facts. The attorney related that she had explained to appellant that appellant was as guilty of murder as her husband because she had aided and abetted him in his escape from Texas (where certain crimes had been committed), she had committed crimes in Arkansas, and she had aided in committing the armed robbery in Nebraska. The former attorney also had advised the appellant to accept the plea bargain, offering to reduce the capital murder charge to first degree murder. At the end of the Rule 37 hearing, the judge stated that he found no incompetence of counsel in her having advised appellant to plead guilty to first degree murder. We disagree.

The attorney’s conclusion regarding appellant’s status as an accomplice was clearly erroneous. An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either advises, encourages or aids another in the planning or commission of the offense, or fails to make a proper effort to prevent the commission of the offense provided he has a legal duty to prevent it. Ford v. State, 296 Ark. 8, 753 S. W.2d 258 (1988). The record reflects that the appellant neither advised, aided nor encouraged Fretwell in the planning or commission of the robbery and murder of Mr. Sullins. Appellant may have suspected Fretwell was up to no good when he left her and Rigsbee for the avowed purpose to use a phone. However, even the mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice. Id.; see also, Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Clearly, appellant’s conduct, while it may be sufficient to convict her of another crime, was not sufficient to make her an accomplice in the killing of Sullins.

Appellant pled guilty on the basis of her attorney’s mistaken assumption and advice that her conduct — as described and related to the court at the plea hearing and at the Rule 37 hearing — was sufficient to convict her of first degree murder when, in fact, it was not. That being true, we must conclude that a reasonable probability existed that, but for counsel’s erroneous advice, appellant would not have pled guilty and instead would have chosen to go to trial.

For the foregoing reasons, we reverse and remand.

       Bobby Fretwell was convicted of capital murder and sentenced to death for killing of Sherman Sullins, and this court affirmed. See Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).


author: Per Curiam.

text:
    Charles D. GRAYSON v. STATE of Arkansas
    RC 89-26
    771 S.W.2d 289
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      Michael L. Allison, for appellant.
    No response.
   Per Curiam.

Appellant, Charles D. Grayson, by his attorney, has filed for a rule on the clerk. His attorney, Michael L. Allison, 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.

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


text:
    David Lee LEWIS v. STATE of Arkansas
    CR 85-223
    771 S.W.2d 773
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989
    Appellant, pro se.
    No response.
   Per Curiam.

Petitioner was found guilty by a jury of aggravated robbery and first degree battery and sentenced as a habitual offender to consecutive prison terms of thirty and twenty-four years. We affirmed. Lewis v. State, 288 Ark. 595, 709 S.W.2d 56 (1986). Soon after the judgment was affirmed, petitioner filed a petition and an amended petition to proceed pursuant to Criminal Procedure Rule 37. We denied the petition. Lewisv .State, CR85-223 (October 13, 1986). About a year later petitioner again sought post-conviction relief in this court, but the petition was declined in accordance with Rule 37.2(b) which provides that all grounds for relief must be raised in the original petition unless the petition was denied without prejudice to filing a subsequent petition. Petitioner had not been granted permission to file a subsequent petition. Approximately two years later petitioner again sought to file a petition for post-conviction relief and was again informed of the provisions of Rule 37.2(b).

Petitioner has now submitted yet another petition under Rule 37. He ignores Rule 37.2(b) and argues only that the conviction and sentence for the crime of battery in the first degree are void. He bases the conclusion on the claim that under the felony information filed in this case the proof required to prove aggravated robbery necessarily included proof of the battery. He overlooks, however, that he was charged by amended felony information with separate offenses of aggravated robbery and battery in the first degree. We have held that one can commit aggravated robbery merely by committing robbery and being armed with a deadly weapon or representing that he is so armed. Ark. Code Ann. § 5-12-103(a)(1)(2) (1987) [Ark. Stat. Ann. § 41-2102 (Repl. 1977)]. To commit first degree battery, one must actually inflict serious injury. Ark. Code Ann. § 5-13-201 (a)(1) (1987) [Ark. Stat. Ann. § 41-1601 (Repl. 1977). Foster v. State, 275 Ark. 427, 613 S.W.2d 7 (1982). As petitioner was charged and convicted of two separate, distinct crimes, the conviction for battery is not void.

Petitioner’s disregard of the provision of Rule 37.2(b) which limits the number of petitions under the rule is blatant. This court will not accept any further petitions for post-conviction relief from this petitioner.

Petition dismissed.


text:
    Emma B. SMITH v. STATE of Arkansas
    RC 89-27
    771 S.W.2d 772
    Supreme Court of Arkansas
    Opinion delivered June 26, 1989

      James P. Clouette, for appellant.
    No objection.
   Per Curiam.

Appellant Emma B. Smith, by her attorney, has filed for a rule on the clerk. The attorney, James P. Clouette, admits that the failure to file the record in time was due to fault 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: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    Terry COX v. STATE of Arkansas
    CR 88-157
    772 S.W.2d 336
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      John Wesley Hall, Jr. and Craig Lambert, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jollijf, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

In September 1987 appellant Terry Cox entered a plea of guilty to the charge of first degree murder. In March 1988 he filed a Rule 37 petition with the circuit court alleging ineffective assistance of trial counsel. Relief was denied. From that order comes this appeal. We affirm.

Cox raises two points concerning the denial of his Rule 37 petition. First, he maintains counsel was ineffective because the attorney allowed Cox to plead guilty despite a meritorious speedy trial argument. Next, he argues the court erred in finding his guilty plea had been entered knowingly and intelligently since his attorney had failed to inform him that entering a guilty plea would result in a waiver of the right to appellate review. Neither argument has merit.

Along with co-defendant Wayne Duncan, Cox was charged on October 18, 1982, with three counts of attempted first degree murder. The information was twice amended in November 1982, resulting in multiple counts including a capital murder charge.

Later, a motion to sever was granted. On April 11, 1983, six months after charges had been filed, defense counsel Dick Jarboe and prosecuting attorney Jim Stallcup agreed that Cox’s case would be continued until after the trial of co-defendant Wayne Duncan. Defense counsel considered the agreement an opportunity to “dry run” the case and agreed to waive any speedy trial claims. No order was entered or docket entry made until a motion for continuance was filed on July 13, 1983, with a corresponding notation in the docket “Motion for continuance for defendant Terry Cox.”

Duncan was tried in April 1985, three years after charges had been filed. His conviction was appealed on speedy trial grounds. While the appeal was pending, Cox’s case was set for October 1985. Cox then employed additional counsel. Shortly before trial, new counsel moved for a continuance based on health problems. An order granting this continuance and also setting out the April 1983 continuance agreement was entered on November 1, 1985. The case was set for May 1986 but again continued by agreement of counsel until October. On October 9, 1986, some four years after charges had been filed, Cox’s new counsel moved to dismiss on speedy trial grounds. Co-counsel Jarboe thereupon withdrew in light of his earlier agreement to waive any speedy trial claims.

In December 1987, we reversed and dismissed co-defendant Duncan’s conviction on speedy trial grounds. Duncan v. State, 294 Ark. 105, 740 S.W.2d 923 (1987). No continuances of record had been filed in Duncan until after the speedy trial period had passed, nor were there any other excludable periods, and “the State offér[ed] no explanation whatsoever for the failure to try the defendant in a timely manner.”

On May 11, 1987, the trial court denied Cox’s motion to dismiss on speedy trial grounds based on the April 1983 agreement between defense counsel and the prosecutor to continue Cox’s case until after Duncan’s trial. This time period was excluded as a period of delay “for good cause” under A.R.Cr.P. Rule 28.3(h). The court noted the agreement included an express waiver of any speedy trial claims.

At some point, a negotiated plea agreement was discussed whereby the prosecutor would recommend a forty year sentence if Cox entered a guilty plea. Counsel for Cox later testified it was felt that if Cox contested the speedy trial issue or sought an appeal following trial, the plea offer would be dropped. For that reason, and because counsel did not think it was wise to expose appellant to a possible sentence of death or life imprisonment without parole if the case went to trial, Cox was encouraged to enter a guilty plea. On September 10, 1987, appellant entered a plea of guilty to first degree murder.

Cox filed his Rule 37 petition in March 1988 alleging ineffective assistance of trial counsel. The petition asserted that trial counsel was ineffective because the attorney allowed Cox to plead guilty despite a meritorious speedy trial claim. In support of his petition, Cox pointed out that co-defendant Duncan’s case had been reversed and dismissed on speedy trial grounds, and he argued the trial court failed to comply with A.R.Cr.P. Rule 28.3(i) and Shaw v. State, 18 Ark. App. 243, 712 S.W.2d 338 (1986) . At the hearing on the Rule 37 petition, an additional issue developed as to whether defense counsel informed Cox that the entry of a guilty plea would result in a waiver of appellate review.

It is appellant’s burden to prove counsel’s assistance was ineffective. Franklin v. State, 293 Ark. 225, 736 S.W.2d 16 (1987). In fact, counsel is presumed competent, and the burden of overcoming that presumption rests on Cox. Franklin, supra; Stobaugh v. State, 298 Ark. 577, 769 S.W.2d 26 (1989). To prevail on a claim of ineffective assistance of counsel, Cox must first demonstrate that counsel’s performance was deficient. This requires showing that counsel made errors so serious that the attorney was not functioning as the “counsel” guaranteed by the sixth amendment. Second, there must be a showing that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive Cox of a fair trial. Pettit v. State, 296 Ark. 423, 748 S.W.2d 1 (1988). Unless Cox makes both showings, it cannot be said that his conviction resulted from a breakdown in the adversary process that rendered the result unreliable. O’Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989).

More importantly, Cox’s conviction is based upon a plea of guilty. The guilty plea was the trial in this case. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). An appellant having entered such a plea normally will have considerable difficulty in proving any prejudice since his plea rests upon his admission in open court that he did the act with which he was charged. Franklin, supra; Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). Courts must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and Cox must show there is a reasonable probability that, but for counsel’s errors, he would not have entered a guilty plea. A reasonable probability is one sufficient to undermine confidence in the outcome of the proceedings. In making a determination on a claim of ineffectiveness, the totality of the evidence must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

Cox presents two reasons why his speedy trial claim was meritorious. We find neither reason convincing and hence cannot say the speedy trial claim had merit. As such, Cox is unable to demonstrate that counsel was ineffective for allowing him to enter a guilty plea under these circumstances. That being the case, the contention that it was error to deny the Rule 37 petition is groundless.

In his brief on appeal, Cox argues: “[Duncan’s] conviction was dismissed on appeal by the Arkansas Supreme Court. . . . [The] Court held in his case that asking for a continuance after the speedy trial time had run does not remedy the speedy trial violation. . . . The same error that voided Duncan’s conviction must, of necessity, void appellant’s too.” The appellant is wrong in this regard.

It is clear that Duncan’s conviction was dismissed because there were no continuances of record except those filed after the speedy trial period had expired, nor were there any other excludable periods, and “the State offer[ed] no explanation whatsoever for the failure to try Duncan in a timely manner.'’’’ (Emphasis ours.) Duncan, supra. Here, a motion for continuance had been filed by Cox and was noted in the record prior to the expiration of any speedy trial period. More importantly, there is an easy and clear explanation by the State and counsel for appellant Cox why he was not tried within eighteen months of the time charges were filed. Defense counsel Dick Jarboe and prosecuting attorney Jim Stallcup specifically agreed Cox’s case would be continued until after the trial of co-defendant Wayne Duncan, which had been severed. The agreement included a waiver of any speedy trial claims and was entered into only six months after filing of the charges. It was for Cox’s benefit as it gave him an opportunity to “dry run” the case by having the prosecution first present its evidence in the co-defendant’s trial. Duncan is different and therefore simply not controlling.

Cox next argues defense counsel should never have allowed Cox to plead guilty since the trial court failed to adhere to the proscriptions of A.R.Cr.P Rule 28.3(i) and Shaw v. State, 18 Ark. App. 243, 712 S.W.2d 338 (1986), which require that courts make docket notations or enter an order reflecting any continuances. See Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989). Again, we find the point to be without merit.

At the time Cox was charged, A.R.Cr.P. Rule 28.1(c) provided:

Any defendant charged with an offense in circuit court. . . shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Rule 28.3 (i) in relevant part provides that “ [a] 11 excluded periods shall be set forth by the court in a written order or docket entry.”

In Shaw, the court of appeals found a failure to comply with Rule 28.3(i) in that the record in that case did “not contain any written order or docket entry setting forth the excluded periods or the number of days in each period.” (Emphasis ours.) The court continued: “In fact, there is nothing in the record to indicate that appellant even requested a continuance.”

As distinguished from Shaw, we have a July 13, 1983,docket notation entered within nine months of the date the charges were filed. (It is not clear whether this motion for continuance was related to the April 1983 agreement between defense counsel and the prosecution, though Cox so suggests in his brief on appeal.) Also, the record contains the court’s order of November 1,1985, describing the terms of the April 1983 agreement. This order was entered almost one year prior to the filing of the speedy trial motion.

We must note, however, that the court should have entered written orders, or made docket notations, in accordance with the intent of Rules 28.3(c) and (i), ideally at the time continuances were granted and preferably detailing the reasons for the continuances, specifying to a day certain the time covered by such excluded periods. In this regard, the case well illustrates the problems encountered when trial courts fail to adhere to our rules.

Despite this failure, we cannot ignore that this case involves an explicit agreement for Cox’s benefit to continue his case until after Duncan’s trial; an agreement conceded by both sides, the terms of which were reflected by an order of record entered almost one year before the speedy trial motion was filed and included an express waiver by defense counsel of any speedy trial claims. Having had the benefit of that agreement, we refuse to give Cox the additional benefit of a court of appeals’ decision, Shaw, bearing little relationship to the facts before us. Under the circumstances, we cannot say Cox met his burden of establishing counsel was ineffective in allowing appellant to enter a guilty plea rather than pursue the speedy trial issue.

Cox’s next point is the court erred in finding his guilty plea had been entered knowingly and intelligently since his attorney allegedly failed to inform him that doing so would result in a waiver of the right to appellate review. This point was not originally raised by Cox in his Rule 37 petition but developed as an issue at the hearing on the petition and was addressed in the court’s ruling on the petition. On that issue, the court found:

From considering the exhibits received in this hearing, the testimony of the defendant, and the testimony of the defendant’s counsel, the court finds that the defendant was aware of the effect of his guilty plea. The defendant’s counsel did not specifically testify that he failed to inform the defendant of his waiver of right to appeal in the event of a guilty plea. The court notes the manner and demeanor of both the defendant and his counsel while testifying [which] leads this court to conclude that the plea of the defendant was voluntarily and intelligently entered. The defendant signed a guilty plea statement informing him of his rights before the plea.

Cox’s guilty plea statement is abstracted and contains the following language:

I understand that if I plead “Guilty” to any of these charges, as to those charges to which I plead “Guilty” I waive and give up certain of my legal rights, including. . . [t]he right to appeal from the verdict, conviction, and judgment, challenging all issues of fact and law. ... I now plead guilty.

At the hearing on Rule 37 petition, Cox testified that he signed the guilty plea statement and that he remembered the court going over the statement with him at the time.

We must decide this issue on Cox’s plea statement since he failed to abstract the transcript of the guilty plea hearing. In addition, he failed to include a copy of the transcript in the record on appeal. We are therefore unable to accurately determine, from the record, the extent to which either court or counsel discussed with Cox the effect of his plea.

This court has repeatedly held that parties have an affirmative obligation to abstract those portions of the record relevant to the points on appeal, and the record is confined to that which has been abstracted. Lee v. State, 297 Ark. 421, 762 S.W.2d 790 (1989). See Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals. Further, it is appellant’s duty to bring up a record sufficient to demonstrate error.

Having reviewed what record is before us, and in view of Cox’s guilty plea statement and the trial court’s conclusions on this particular issue, we cannot say that the trial court erred in denying Cox’s petition for relief under Rule 37.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This is an appeal from the denial of a Rule 37 petition alleging ineffective assistance of counsel for failure to assert a speedy trial defense on appellant’s behalf. He was arrested, along with another person named Duncan, on October 18, 1982. He entered a guilty plea on September 10, 1987. The entry of his plea came almost five years after his arrest.

At the evidentiary hearing on the Rule 37 petition in 1988, his former attorney stated that he had reached an agreement with the prosecuting attorney in 1983 to continue the appellant’s case until after Duncan’s trial. The docket reflects that there was a motion for a continuance entered on July 13, 1983. The docket does not reflect that this motion was ever acted upon. Rule 28.3(a) states in part:

No pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period.

Duncan was tried on April 10, 1985. That is 21 months after the motion for a continuance based on the agreement with the prosecutor. Therefore, 21 months should be deducted from the 59 months between the appellant’s arrest and the entry of his plea. After this deduction 38 months still must be reckoned with.

Petitioner’s trial was finally set for October 1985. He made a motion for a continuance, which was granted in an order dated November 1, 1985. This order also contained the first record of the agreement between former defense counsel and the prosecutor for the continuance which had been entered into in 1983. (There is no evidence that the appellant was told about this agreement.)

The weakest link in the state’s case, as noted in the majority opinion, is that the agreement between the defense attorney and the prosecutor was not entered of record until November, 1985. The most difficult point to explain about the majority opinion is that Duncan was tried on April 10, 1985, 17 months before the appellant’s guilty plea, and on direct appeal we reversed and dismissed because he had been denied a speedy trial. The maximum allowable time for bringing the appellant’s case to trial was 18 months. That period has been doubled and still we find no violation of the rule.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Howard Pete COCKRUM v. STATE of Arkansas
    CR 89-67
    772 S.W.2d 341
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      Sullivan, Emmons & Kissee, by: Larry Dean Kissee, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jollijf, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This is an appeal from an order denying the appellant’s request to withdraw his guilty plea. We affirm.

Cockrum was charged with aggravated robbery. He had an agreement with the state to plead guilty to reduced charges of robbery and first degree battery. The state recommended a sentence of 20 years, suspended, with three years probation, and fines and restitution of $4,000. In addition, Cockrum would be required to stay away from his victim, Larry James Howard.

A plea hearing was held and Cockrum entered his plea of guilty to both offenses. In response to questioning, Cockrum informed the judge that he had one previous felony conviction. No sentence was imposed at that time, and the court ordered a presentence investigation.

Shortly after the hearing, Cockrum filed a motion to withdraw his plea. In his motion, he informed the court that he had failed to mention an army disciplinary action against him in Japan. He feared that, because of this new development, the court would not follow the state’s sentencing recommendation.

A hearing was held on the motion and it was revealed that Cockrum had actually served a prison sentence for violations of Japanese law. Cockrum also claimed that, at the plea hearing, the judge indicated he would concur in the state’s recommendation.

The court refused to accept the state’s recommendation and sentenced Cockrum to 12 years, with 4 years suspended, for battery, and 12 years suspended for robbery. The court mentioned the sentence was being imposed because Cockrum had failed to disclose all his previous convictions, and because one of the prior offenses involved circumstances similar to this one.

There is no doubt that the judge told Cockrum the court was not bound by the recommendation. The court said:

Q. Now, Mr. Cockrum, you understand that the court is not bound by that recommendation, don’t you?
A. Yes sir, I know that.

A.R.Cr.P. Rule 26.1(a) provides that the court shall allow the withdrawal of a guilty plea if necessary to correct a manifest injustice. The rule sets out one instance that will be considered a manifest injustice at Rule 26.1(c)(v):

Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:. . . he did not receive the charge or sentence concessions contemplated by a plea agreement in which the trial judge had indicated his concurrence. . . .

If the judge indicated he concurred in the state’s recommendation, the appellant should have been allowed to withdraw his plea. The appellant claims that the trial judge’s command to the prosecutor to prepare a list of conditions of suspension and to appellant’s attorney to review the conditions with the appellant indicated the recommendations would be accepted.

The judge could not have been more clear that he was not bound by the state’s recommendation. Besides his express statement to the contrary, he declared that the purpose of the preparation of the list was so that Mr. Cockrum would be aware of the conditions if probation was imposed. The judge was merely being efficient.

The appellant cites Zoller v. State, 282 Ark. 380, 669 S.W.2d 434 (1984), to support his argument. There, the judge stated he was “satisfied” with the plea agreement and even stated he realized he gave the impression he would accept the recommendation. Here, the judge was unequivocal in his declaration that he was not bound by the agreement, and he never said anything to even remotely indicate he would accept it.

Finally, the appellant argues he should have been allowed to withdraw his plea because it had been made under the influence of a threat. See A.R.Cr.P. Rule 26.1 (e). He had already stated at the plea hearing that his plea was voluntary and admitted to the factual basis supporting the plea. In Stone v. State, 254 Ark. 566, 494 S.W.2d 715 (1973), we declared that, where a factual basis exists for the plea and the defendant initially admitted his plea was voluntary, he faces an “uphill climb” to overcome the consequences of his plea.

We find no abuse of discretion here considering the appellant’s proclaimed voluntariness of his plea and admission to the facts constituting his crime.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The appellant entered his guilty plea based upon his understanding of an agreement between his lawyer and the prosecuting attorney. The court refused to accept the recommendation and the appellant then attempted to withdraw his plea. A.R.Cr.P. Rule 26.1 (a) provides that the court shall allow the withdrawal of a guilty plea in order to correct a manifest injustice. Rule 26.1(c) states:

Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:. . . (v) he did not receive the charge or sentence concessions contemplated by a plea agreement in which the trial judge had indicated his concurrence. . . .

No proof was needed to show that the defendant did not receive the sentence contemplated by himself and the prosecutor. The question is whether the trial judge had indicated his concurrence in the recommendation. It is not disputed that the judge explained to the appellant before the entry of his plea that the court was not bound to accept it.

The case of Zoller v. State, 282 Ark. 380, 669 S.W.2d 434 (1984), supports the appellant’s contention that he should have been permitted to withdraw his guilty plea. The trial judge in Zoller had stated that he realized that he had indicated or given the impression that he would accept the recommendation on the plea bargain.

Certainly the indications are that the judge in the present case intended to accept the recommendation, if the background check and presentence report proved the appellant deserved to be sentenced in accordance with the agreement. The majority opinion confuses the judge’s unequivocal declaration that he was not bound by the agreement with the judge’s indication that he intended to go along with the agreement. The statement by the majority that the trial judge had explained to the appellant that the judge would not be bound by the plea agreement is nothing more than a straw man.


author: Darrell Hickman, Justice.

text:
    Barbara EASOM v. CAVENAUGH FORD COMPANY, INC.
    89-39
    771 S.W.2d 778
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989

      Larry J. Steele, for appellant.

      Bill W. Bristow, for appellee.
   Darrell Hickman, Justice.

The appellant, Barbara Easom, sued the appellee for fraud and breach of warranty. After a pretrial hearing, the trial court dismissed the fraud claim. A directed verdict was granted on the breach of warranty action. Mrs. Easom filed a motion for a new trial, and the trial judge entered an order denying that motion. We reverse and remand.

Mrs. Easom is a 31 year old widow with a seventh grade education. In December of 1987, she bought a 1988 pickup from the appellee, Cavenaugh Ford. The truck had 288 miles on it and was sold “as is” and “with all faults.” According to the buyer order, the truck had had “some metal and paint work done on it.” The dealer warranty disclaimer purportedly disclaimed all warranties, either expressed or implied.

When Mrs. Easom visited the appellee’s place of business, she looked at three trucks on the lot and filled out a credit application. After her credit was approved, she visited the lot again and discovered the salesman had already begun to fill out the paper work on the truck in question, even though she had not yet expressed interest in any one truck. She testified that the salesman told her, “I don’t have to tell you this but [the truck has] had some minor paint and metal work done on it.” He informed her it had probably been damaged during unloading. Mrs. Easom purchased the truck, but tried to return it a week later when the paint began to come off. Cavenaugh refused to take the truck back.

Shortly thereafter, the truck was involved in a minor accident. In the course of having it repaired, it was discovered that extensive rebuilding had been done on the truck. Mrs. Easom again tried to return the truck to Cavenaugh and, again, her offer was refused. She then filed her lawsuit for fraud and breach of warranty.

Cavenaugh filed a motion in limine claiming the appellant should be prohibited from mentioning the condition of the frame and body of the truck without first establishing that Cavenaugh knew of the condition at the time the truck was sold to the appellant. In essence, this motion challenged the appellant’s ability to prove her claim for fraud.

At a hearing on the motion, the appellant called Harry McCord, a body repairman and used car dealer who sold the truck to Cavenaugh. McCord testified that, before he sold the car to Cavenaugh, he had put a front fender on it, replaced the core support for the radiator, the bed of the truck, the hood, and the grill, and straightened the frame. He also testified that he told Mr. Cavenaugh the truck had minor frame damage and that he had replaced the bed and the parts on the front of the truck.

The trial court granted the motion in limine, telling the appellant “you can’t go on fraud,” essentially preventing her from proceeding on her fraud claim. This was error. Two of the five basic elements of a cause of action for fraud are (1) a false, material statement (ordinarily of fact) by the defendant, and (2) scienter — knowledge by the defendant that the representation is false, or an assertion of fact which he does not know to be true. Delta School of Commerce v. Wood, 298 Ark. 195, 766 S.W.2d 724 (1989). In this case, the appellant provided evidence from which a jury could find that she had been defrauded: a false statement by the salesman that the truck had had “minor” paint and metal work, and, according to Mr. McCord’s testimony, knowledge by Cavenaugh of the extensive work done on the truck. See O’Neal Ford, Inc. v. Davie, 299 Ark. 45, 770 S.W.2d 656 (1989). An issue of fact existed which should have precluded the summary dismissal of the fraud action.

We find a new trial should have been granted on the fraud claim.

Reversed and' remanded.

       Although the judge heard testimony of a witness, his decision to dismiss the appellant’s fraud claim was akin to a grant of a summary judgment. In effect, he found there was no genuine issue of fact on whether the appellee knew of the condition of the truck.


author: Darrell Hickman, Justice. David Newbern, Justice,

text:
    Johnny Lee HILL a/k/a Johnny Leroy Hill, a/k/a Patrick Allen Whitley v. STATE of Arkansas
    CR 89-10
    773 S.W.2d 424
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989
    [Rehearing denied September 11, 1989.]

      Mark Roberts, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The appellant was convicted of first degree murder and sentenced to life in prison. On appeal, he challenges the sufficiency of the evidence and the validity of a vehicular search. We affirm his conviction.

On Monday, May 25, 1987, Gary Sturdivant was found murdered in his mobile home near Malvern. He was found with his hands and feet tied. He had suffered a blow to his head, but death was by strangulation. Investigating officers determined that several items were missing from the trailer, including a VCR, stereo speakers, billfold, Visa card, camera, watch and rifle. The victim’s car, a 1986 Toronado Oldsmobile, was also missing. There was no sign of forced entry.

The last person to see Sturdivant alive was his friend, Charles Brooks. The two men had been drinking on the evening of Saturday, May 23. They had been to Garland County to buy liquor and had visited several people’s houses before Sturdivant dropped Brooks off at Brooks’ home around midnight.

A neighbor of Sturdivant’s, Eddie Arrivete, saw the Oldsmobile arrive at Sturdivant’s trailer between 11 p.m. and midnight that night. The car, which he assumed was driven by Sturdivant, was followed by a truck with three men in it. The occupants of both vehicles entered the trailer. Arrivete noticed that by 9 a.m. Sunday morning, the vehicles were gone. The men in the truck have never been identified.

Sturdivant’s body was discovered the following day. The medical examiner determined the time of death was between 3 a.m. and 4 a.m. Sunday.

The appellant was never identified as being in Sturdivant’s home or in his company, but he was seen near Malvern both before and after the murder occurred. Witnesses saw him on Saturday between 3 p.m. and 4 p.m. at a convenience store off Interstate 30 near Malvern. Later that night, he was seen hitchhiking on the Interstate near the Malvern exit between 9 p.m. and 10:15 p.m. Witnesses said he was carrying a duffle bag.

The appellant was next seen between 4 a.m. and 5 a.m. on Sunday driving the victim’s car west on Interstate 30 near Prescott. According to a husband and wife truck driving team, Don and Sandra Misc., he was driving “terribly fast” and nearly ran them off the road. They blinked their lights at him and he pulled into a rest area, where he parked the car on the sidewalk. They identified the car as the Oldsmobile Toronado and said it had Arkansas plates.

Don Misc. spoke with the appellant and, assuming he was drunk, told him to stay off the road. The appellant explained that he was an electrician living in Texarkana, that he had been to a friend’s funeral in Little Rock, and was on his way to Dallas. He said he had had too much to drink after the funeral, but Misc. smelled no alcohol on his breath. Misc. noticed a pillow covering the butt end of a rifle in the back seat of the car and told the appellant, “you’d better get that thing out in the open, being as the cops will get you for concealed weapons.”

Hill apparently continued on to Dallas and was arrested there on May 29. Dallas police officers received information that a black man and a white man were at a convenience store attempting to sell stolen goods. Three non-uniformed officers arrived at the scene. Officer David Clark saw the appellant sitting in the Oldsmobile, approached him, and asked for identification. Hill could not produce any identification or any insurance papers on the car. He told the officer his name was David Patrick, and that he had bought the car from a man named Gary. When he was asked a second time, he said his name was Ashley Patrick Whitley.

The vehicle had a Texas license plate and Officer Clark ran a check on the vehicle. It showed the tags belonged on a different car. Officer Clark asked for permission to look in the trunk and Hill agreed. The trunk contained several items, including a checkbook and checks belonging to Gary Sturdivant, an Arkansas license plate, items of clothing, and a duffle bag like the one Hill had been seen with while hitchhiking. Seeing the papers, he asked about Gary Sturdivant and Hill said, “yeah, that’s the man I bought the car from.” Clark was curious why a man would sell his car and leave his checkbook and clothing in it and questioned the appellant further. He was then given a third name, Johnny Lee Hill.

The officer ran a check on the Arkansas license plate and discovered the vehicle was connected with a murder investigation. Hill was arrested and taken to the police station where he told yet another story about the car. He said he really did not buy it from a man named Gary, but the car was given to him by a man named Clyde at one of the missions in Dallas.

Hill was charged with capital felony murder. At trial, several state crime lab experts testified that no hairs, fingerprints or body fluids found at the victim’s trailer could be matched conclusively to Hill.

It was discovered that the victim’s Visa card had been used five times on Sunday May 24 between Arkadelphia and Dallas. It was used the first time at 4:19 a.m. at a convenience store at the Caddo Valley interstate exit near Arkadelphia, about 25 miles south of Malvern. It was later used in Texarkana, Rockwall, Texas, and twice in Dallas. Each time, the receipt was signed “Stevie Sturdivant.” A crime lab analyst could not match the handwriting on the receipts to the appellant, but she stated that the sample submitted by the appellant showed evidence of deception.

At the close of the state’s evidence, the appellant moved for a directed verdict, claiming there was not enough direct or circumstantial evidence for the jury to conclude he had committed the crime. The motion was denied.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Gardner v. State, 296 Ark. 41, 754 S.W. 2d 518 (1988).We will affirm the verdict if it is supported by substantial evidence, and circumstantial evidence may constitute substantial evidence. Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987). Circumstantial evidence must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. It will not rise to the level of substantial evidence if it leaves the jury only to speculation and conjecture in choosing between two equally reasonable conclusions and merely gives rise to suspicion. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983).

We have affirmed murder convictions based entirely on circumstantial evidence. See Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988); Still v. State, supra. The question here is, does the proof satisfy the test for substantial evidence?

Hill was seen fleeing the area in what could have been minutes after the victim’s time of death. His manner of driving and his conduct described by the Misc.s are certainly consistent with flight from a crime, a factor which the jury may consider as evidence of guilt. Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984).

Possession of property reported missing from the victim’s home may be considered evidence of guilt. See Gardner v. State, supra. The jury could have concluded Hill was in possession of Sturdivant’s Visa card and his rifle and that he took those items from Sturdivant’s trailer. The dissent states there is nothing to show the Visa card was in the trailer rather than in the car. In determining the sufficiency of the evidence, the evidence and all its reasonable inferences are viewed most favorably to the appellee. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983). The jury could have concluded the card was in Sturdivant’s billfold, which was among the many items reported missing from the trailer. That would be a fair interpretation of the evidence. Members of the jury may use common knowledge and experience in evaluating the evidence. Chisum v. State, 213 Ark. 1, 616 S.W.2d 728 (1981).

Hill’s lies to the Misc.s and the Dallas police were manifold, which could lead the jury to conclude he wished to hide his identity, actions and whereabouts. False, improbable and contradictory statements to explain suspicious circumstances may be considered by the jury in determining guilt. Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986).

If Hill did not kill Sturdivant or participate in his murder, why was Sturdivant’s vehicle in his possession? One possibility is that he found it on the freeway, abandoned. He could have stolen it from Sturdivant’s trailer or from somewhere else. He could have been given the vehicle by Sturdivant’s killer. But considering Hill’s flight from the crime, the total circumstantial evidence, and his false explanations, these conclusions are not equally as reasonable as the conclusion that Hill either murdered or participated in the murder of Gary Sturdivant. We conclude the evidence is substantial and the jury did not have to resort to speculation to reach its verdict.

The other issue concerns the validity of Hill’s consent to allow the vehicle to be searched by the Dallas police. The appellant has presented no argument that he should have standing to question the search of a vehicle owned by another person. Therefore, we find no unlawful search or seizure. See Tippitt v. State, 294 Ark. 342, 742 S. W.2d 931 (1988). See also Sanborn v. State, 251 Ga. 159, 304 S.E.2d 377 (1983) (no standing to question search of a stolen car.)

We have examined the record for other errors as we are required to do under Ark. Sup. Ct. Rule 11(f) and finding none, affirm the judgment.

Affirmed.

Purtle, Dudley and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. Johnny Lee Hill, or whatever his name may be, is guilty of something, but the State has not proven him guilty of murder. I agree with all the parts of the majority opinion, but when they are assembled they do not add up to a whole we can label “substantial evidence” of murder. The state has come very close, but that is not enough. Our system of criminal justice is designed on the premise that it is better to let ten guilty persons go free than to convict one who is innocent of the crime charged.

The problem with the State’s evidence is that there is nothing to place Hill at the scene of the crime. An investigator testified he had determined that a rifle was missing from Sturdivant’s home, but there was no evidence showing that the rifle seen by the truckers in the Oldsmobile was the one which had been owned by Sturdivant. An investigator determined that Sturdivant’s Visa card was missing, but there is nothing to show that it had been in the house, rather than in the car, assuming it was taken by Hill and used by him to make purchases.

The majority opinion asks: “If Hill did not kill Sturdivant or participate, in his murder, why was Sturdivant’s vehicle in his possession?” Several scenarios are then suggested, and the conclusion is reached that none of them is “equally as reasonable as the conclusion that Hill either murdered or participated in the murder of Gary Sturdivant.” Missing is the reason none of them is as likely. Suppose Hill had been one of the three otherwise unidentified men who entered Sturdivant’s trailer on the night of Saturday, May 23, 1987. How can we know he did not simply steal the car and leave the two others with Sturdivant? How do we know that he did not simply steal the car, having had no connection with these visitors? Assuming he stole the car, how do we know the rifle and the credit card, and for that matter Sturdivant’s billfold, were not in the car at the time he stole it? What proof is there that he was inside Sturdivant’s trailer when the crime was committed there, assuming it was committed in the trailer?

It is unquestionable that circumstantial evidence may be sufficient to constitute substantial evidence. It is equally unquestionable that circumstantial evidence may not be sufficient. See Johnson v. State, 210 Ark. 881, 197 S.W.2d 936 (1946). To be sufficient, circumstantial evidence must “exclude every other hypothesis inconsistent with innocence.” Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). Here the circumstantial evidence does not quite meet that standard.

The majority opinion cites Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988), as an example of a murder conviction based on circumstantial evidence. There was no doubt in that case that the victim and the defendant were together at the time she died. The defendant admitted as much. We found there was substantial evidence, based on circumstances, to show the defendant pushed his wife off a bridge rather than witnessing her accidental fall. That is a far cry from this case where the circumstances support no more than the allegation that Lee stole Sturdivant’s automobile.

Also cited is Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987), where the defendant admitted to having buried her paramour’s body in her front yard. Her story was that he had committed suicide and she had buried him in the yard without telling anyone because her first husband, who also died of a gunshot wound, had been taken from her and buried in a place she could not visit. There, as here, we had lies showing guilt, but we also had evidence that the defendant specifically was trying to hide the death of the victim. Here we have only a showing that Hill was trying to hide something, and that something could just as easily have been theft of the car as murder of Sturdivant.

The conviction should be reversed and the case dismissed.

Purtle and Dudley, JJ., join in this dissent.


text:
    IN RE: LOCAL ADMINISTRATIVE RULES OF THE CHANCERY COURT OF THE ELEVENTH JUDICIAL DISTRICT-WEST
    88-279
    772 S.W.2d 600
    Supreme Court of Arkansas
    Opinion delivered July 3, 1989
   Darrell Hickman, Justice.

This is an original action. The Supreme Court Committee on Rules of Pleading, Practice and Procedure (Civil) filed a petition asking us to declare void the local administrative rules promulgated by the chancery court of the eleventh judicial district-west.

In a per curiam order published December 21, 1987, we abolished ARCP Rule 83, the rule which allowed circuit or chancery courts to prescribe local rules. See 294 Ark. 664, 742 S.W.2d 551 (1987). Our decision was reached after a long and deliberative process and was made on the principle that any litigant or member of the bar of this state should know the fundamental rules of litigation which affect their rights adversely, no matter what court they may be before.

It was not our purpose to intrude on the inherent power of a trial judge to run his or her court, and we recognized the need to attend to administrative matters. We also recognize there are not always clear lines to be drawn between what is a procedural rule and a local housekeeping rule. But it is the inherent nature of the law that a good deal of line-drawing must be done.

After our per curiam was published, the chancery judges of the eleventh judicial district-west published a rather comprehensive set of local rules. The petitioners filed this action, claiming the rules violated the letter and spirit of our per curiam order. After the petition was filed, the respondents voluntarily deleted certain parts of the rules. The petitioners concede that some of the rules are mere housekeeping rules, such as those setting the hours of court and the assignment of cases. The remaining rules are in dispute.

The respondent judges have asked in good faith that they be permitted to meet with the petitioner committee and attempt to resolve the differences. They have demonstrated their good faith, in our judgment, by striking some of the rules they have promulgated. Because this is the first case since the publication of our per curiam challenging a set of local rules, we welcome and encourage the parties’ effort to resolve the situation.

We note that some of the rules appear to deal with substantive or procedural matters, are duplicative of existing rules or statutes, or would be better suited for use in all courts, not just one or two. An example of the latter is local Rule VIII(c) which requires parties to submit financial statements prior to alimony or child support hearings. While it is probably a good practice, if it is required at all, it should be part of the procedure for all courts.

An example of a duplicative rule is Rule IV which provides that, once a trial or hearing has been set, no continuance will be granted except for good cause. This same language is contained in ARCP Rule 40(b).

We take this action with the statement that we are committed to a uniform system that should be known for its simplicity, not its prolixity. We have, and will keep, an open mind to changes that should be made in our existing procedures, and we will continue to respect the administrative needs of trial judges. But it is not a matter we want to quibble about. We cannot tolerate the burden of unnecessary local rules being placed on those litigants who must seek justice in every corner of the state.

The matter is passed and the parties are encouraged to settle this matter and report to this court no later than November 15, 1989, on their progress. Neither party is prejudiced to proceed to a judicial resolution of this matter. When the report is made to us, we will act accordingly.

Newbern, J., not participating in the oral argument or final decision.