author: Dale Price Justice. Robert H. Dudley, Justice,

text:
    Thomas Lloyd GRISWOLD v. STATE of Arkansas
    CR 90-158
    801 S.W.2d 270
    Supreme Court of Arkansas
    Opinion delivered December 17, 1990
    [Rehearing denied January 28, 1991.]

      Young & Finley, for appellant.

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

Thomas Lloyd Griswold appeals his conviction of three counts of rape. He was sentenced to three life terms to be served concurrently. The first trial of this mater resulted in a conviction of three counts of rape which was affirmed by this court in Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986). In Griswold v. State, 298 Ark. 397, 768 S.W.2d 35 (1989), we remanded for the trial judge to determine if the appellant was denied effective assistance of counsel. A new trial was ordered, and Griswold now contends the trial court erred in holding that Dr. Beth Griswold could not testify as to the victims’ prior exposure to sexual acts, terminology and fantasies. We affirm.

The appellant was convicted of raping his two nieces, ages thirteen and ten, and his five-year-old stepdaughter. The appellant’s nieces and their mother (the appellant’s sister) were living in the same house with the appellant and his wife. The appellant’s wife had a daughter and two sons by a former marriage who also resided in the house. The rapes of the three girls allegedly occurred while their mothers were working at a poultry plant and the appellant was home alone with the children after school.

The appellant’s nieces subsequently moved into the home of their mother’s brother, Homer Griswold. Homer Griswold was the brother of the appellant and married to Dr. Beth Griswold, a psychologist. The nieces lived with Homer and Beth Griswold for approximately one year. At his trial, the appellant attempted to show through Dr. Griswold’s testimony that the children were thoroughly familiar with sexual acts, terminology and fantasies at an early age. The prosecutor’s objection to this line of questioning on the basis of relevancy was sustained by the trial court. The discussion of the ruling was moved into chambers, where it was learned the appellant intended to have Dr. Griswold testify to statements allegedly made to her by her nieces. The girls’ statements consisted of their exposure to sexual liaisons between their mother and several men and overhearing profane language used during those instances. The appellant argued Dr. Griswold’s testimony was relevant because the jury need to know how the victims acquired their knowledge of sexual matters at such a young age. The trial court determined the proffered testimony of Dr. Griswold was collateral, irrelevant, and had no bearing on the elements of the alleged rapes. The court stated that “it is immaterial where they [the victims] may have gained knowledge of sexual acts.”

Griswold appeals the above ruling, arguing this testimony was relevant, and the trial court’s failure to allow it led to conjecture by the jury that the victims learned all they knew about sexual acts from the appellant. We find no merit to this argument. A.R.E. Rule 401 states:

‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

A.R.E. Rule 402 states “[e]vidence which is not relevant is not admissible.” A ruling on relevancy is discretionary, and the trial court’s decision will not be reversed unless an abuse of discretion is found. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983). The proffered testimony of Dr. Griswold had no bearing on the question of the appellant’s guilt. How, when and from whom the victims acquired their knowledge of sexual matters did not make it more or less likely that the appellant committed rape. The trial court did not abuse its discretion in its ruling on this testimony. In addition, the proffered testimony of Dr. Griswold was properly excludable as hearsay. A.R.E. Rule 802; Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987).

The Arkansas Supreme Court and Court of Appeals Rule 11 (f) requires that the appellant abstract all objections decided adversely to him in the trial court, together with such parts of the record which are needed for an understanding of the objection when the sentence is death or life imprisonment. The attorney general is to make certain that all objections have been abstracted and brief all points argued by the appellant as well as any other points that appear to involve prejudicial error. Neither party has complied with Rule 11(f), and in order to save the time which would be required to have the case rebriefed, we have examined the record and found no meritorious objections decided adversely to Griswold and no prejudicial error.

Affirmed.

Holt, C.J., Dudley and Newbern, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. The appellant was charged with the rape of three girls who were five, ten, and thirteen years old. Force was not an element of the crimes. See Ark. Code Ann. § 5-14-103 (1987). Appellant denied the charges. In the State’s case-in-chief, the girls used graphic language to describe their allegations. Appellant’s counsel was concerned that the jurors would infer that girls of such immature years would not have such an extensive knowledge of sexual acts unless they had, in fact, been previously exposed to sexual acts by appellant. In his defense, appellant’s counsel sought to counter the testimony by showing that the girls (1) lacked credibility and (2) that the graphic language did not necessarily come from any experience with appellant. He showed that the girls had made prior accusation which apparently were false because the girls later retracted them. Those false allegations against others included an allegations of sexual abuse. Counsel then sought to prove that the girls previously had seen sexual acts performed by their mother and various men, and that is where they gained the knowledge to graphically describe their allegations. The trial court ruled the matter of prior knowledge was not relevant. The majority opinion affirms that ruling. I dissent.

The basis of the majority opinion is that the proffered testimony had no bearing on the elements of the alleged rapes, or the ultimate issue. I submit that the majority misconstrue the meaning of Rule 401.

The definition of “relevancy” is not at all limited to the ultimate fact in dispute. In fact, because the word “materiality” had acquired that very meaning, it was deliberately excluded from use in the rules. Cotchett and Elkind, Federal Courtroom Evidence, 43 (2d ed. 1988). “Relevant evidence” under Rule 401 means evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The advisory committee’s comments to Rule 401 of the federal rules provides: “The kind of fact to which proof may be properly directed is any fact that is of consequence to the determination of the action. The fact to be proved may be ultimate, intermediate, or evidentiary; so long as it is of consequence in the determination of the action.” As Dean McCormick has so aptly phrased it: “To be relevant, evidence need only be a brick, not a wall.” McCormick on Evidence 543 (3d ed. 1984). In sum, the majority misconstrues the meaning of “relevant.”

In Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976), we said relevant evidence is any evidence which aids in establishing the accused’s guilt or innocence, even though only a slight inference can be drawn from the evidence. In Brown v. State, 264 Ark. 944, 581 S.W.2d 549 (1979), we held that prior sexual conduct between the prosecutrix and the accused was relevant to a consent defense to a charge of rape.

The fallacy of the majority reasoning can easily be demonstrated. If the elements of a crime, or the ultimate issue, are all that are relevant, an accused could never prove insanity as a defense, and credibility of witnesses could never be attacked. The proffered testimony in this case was relevant to prove that the girls were able to graphically describe sexual activity aside from any act by the accused.

The majority opinion affirms the trial court on the alternative basis of hearsay. Again, I am unable to agree because, under the facts of this case, such an alternative ruling would be manifestly unfair. Here, in response to appellant’s counsel’s question, the trial court stated that the relevancy ruling applied to all witnesses, and that included the girls. Thus, the appellant was prevented on the basis of relevancy from asking the questions directly of the girls. Accordingly, I dissent.

Holt, C.J., and Newbern, J. join in this dissent.


source: Caselaw Access Project

author: Dale Price, Justice.

license: Public Domain

text:
    Darlene PEEKS and Donnie Peeks v. ARKANSAS DEPARTMENT OF HUMAN SERVICES and Kenneth Murphy
    90-68
    800 S.W.2d 428
    Supreme Court of Arkansas
    Opinion delivered December 17, 1990

      Griffin J. Stockley, Central Arkansas Legal Services, for appellant.

      Frank Gobell, Office of Chief Counsel, Arkansas Dep’t of Human Services, for appellee.
   Dale Price, Justice.

This is an appeal from a dependent-neglect proceeding pursuant to the Arkansas Juvenile Code of 1989. The issue is whether the trial court erred by not ordering the return of the appellants’ children at the conclusion of the hearing on October 16, 1989. We dismiss.

The appellee, Arkansas Department of Human Services (DHS), through its agent, Kenneth Murphy, filed a petition for emergency custody of the children of appellants Darlene and Donnie Peeks. The petition alleged the children had been abandoned by their mother and thus were dependent-neglected. The court entered an order on the same date, finding there was probable cause to believe the children were dependent-neglected and placed them in the custody of DHS. Following a delay agreed to by the parties, the adjudication hearing was conducted on October 16, 1989. That hearing was subsequently continued to October 23 for additional evidence regarding the appellants’ home condition. The court entered its order on November 16 in which it found the children were not dependent-neglected, returned custody to the appellants and dismissed the action.

The parties acknowledge the threshold question is whether the issue to be decided is moot. As previously noted, the adjudication hearing was continued for one week, and the children were returned to the appellants at its conclusion on October 23. This controversy is moot. The appellants rely upon Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989), in support of their contention that this court should nevertheless review the matter. We stated in Campbell that when a case involves the public interest, or tends to become moot before litigation can run its course, or a decision might avert future litigation, we will not refuse to consider the case on its merits. None of the reasons enunciated in Campbell have application here. In any event our review of the merits is precluded because of the doctrine of invited error. The doctrine provides that a person cannot complain of an alleged erroneous action of the trial court if he himself induced such action. Missouri Pacific Railroad Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944). It was clearly the appellants’ suggestion to continue the hearing for another week.

Accordingly, this action is dismissed.


text:
    Kenneth TRAYLOR v. STATE of Arkansas
    CR 90-119
    801 S.W.2d 267
    Supreme Court of Arkansas
    Opinion delivered December 17, 1990

      Joe K. Hardin, for appellant.

      Steve Clark, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.
   Dale Price, Justice.

Kenneth Traylor, appellant, was convicted of breaking or entering, theft of property and of being a felon in possession of a firearm. He was sentenced to a fine of $20,000 and a term of 60 years in the Arkansas Department of Correction. On appeal, appellant argues four points for reversal. We affirm.

John Matlock testified his barn was broken into between October 2 and October 6, 1989, and several items were stolen. The items introduced at trial as stolen from his barn were an air compressor, a mitre saw, a chainsaw and a .410 gauge shotgun. The state crime lab determined that the shackle of the lock on Matlock’s barn had been cut by bolt cutters found in the vehicle that appellant was driving when stopped by a sheriffs deputy on October 13, 1989.

Katherine Shelton, who runs Mattie’s Cafe in Sparkman, testified at trial that appellant came to her cafe in October, 1989, and offered to sell her the items allegedly taken from Matlock’s barn. Shelton bought the shotgun and loaned money to John Oliver to buy the saws and the compressor.

Appellant had previously been convicted of aggravated robbery and two counts of burglary and theft. Ark. Code Ann. § 5-4-501 (1987) provides for enhancement of penalties when a person is convicted of a felony if that person has previously been convicted of a felony. Under Ark. Code Ann. § 5-73-103 (1987), it is a separate offense for a person who has previously committed a felony to be in possession of a firearm.

Appellant argues that the state cannot use his prior felony convictions to convict him of felon in possession of a firearm and then use the same prior felony convictions to enhance the penalty for that conviction.

Ark. Code Ann. § 5-4-501 through § 5-4-505 (1987), the habitual offender statute, does not create a distinct additional offense or independent crime but simply affords evidence to increase the punishment and to furnish a guide for the court or jury in fixing the final punishment in event of conviction of the offense charged. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).

Although appellant does not explicitly state it, it would appear he is making an argument that his right to be free from double jeopardy is being violated. Appellant was not convicted of two offenses which share the same elements, and thus he was not twice put in jeopardy for the same offense. Accordingly, we find that the trial court did not err in denying appellant’s motion to prohibit enhanced penalties for his felon in possession of a firearm conviction under Ark. Code Ann. § 5-4-501 (1987).

Next, appellant contends that he was prejudiced and received an unfair trial because the state was allowed to amend the information on the day of the trial charging him under the habitual offender statute, Ark. Code Ann. § 5-4-501 (1987). Appellant contends that since he did not fully know the charges against him until the day of the trial, his constitutional rights were violated.

The record of the lower court’s proceedings shows that appellant was put on notice that the state intended to make an amendment to the information to enhance appellant’s punishment through the habitual offender statute, and that appellant was not surprised when the trial court allowed the information to be amended so as to allow for enhancement of his punishment upon conviction.

Further, appellant stated in a motion filed one day before the trial that he was aware that the state intended to try appellant as a habitual offender. In Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987), the state filed an amended information four days before trial to show that the defendants were habitual offenders. The court ruled that since the defendants’ attorneys had been given a “rap sheet” showing that the defendants were habitual offenders, there was no surprise when the information was amended.

The amended information did not change the nature or degree of the crime, but simply afforded evidence to increase the punishment. Harrison v. State, 287 Ark. 102, 696 S.W.2d 501 (1985); Lincoln v. State, 287 Ark. 16, 696 S.W.2d 316 (1985). Also, appellant did not ask for a continuance and did not demonstrate prejudice. We hold the trial court did not err in allowing the state to amend its information, charging appellant as a habitual criminal, on the day of trial.

As to the circumstantial evidence the state offered at trial, the bolt cutters, appellant contends this was not sufficient evidence to prove he committed the offense of breaking or entering. He argues that there are other possible defendants for the offenses he has been convicted of since there were other people present when the stolen items were sold.

In determining the sufficiency of the evidence upon appeal, this court considers the testimony that tends to support the verdict and views the testimony in the light most favorable to the appellee. We will affirm the trial court if there is any substantial evidence to support the verdict. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).

Substantial evidence is evidence that is of sufficient force and character that will, with reasonable and material certainty and precision, compel a conclusion one way or the other, forcing or inducing the mind to pass beyond a suspicion or conjecture. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986).

For circumstantial evidence to be sufficient, it must exclude every reasonable hypothesis consistent with innocence. Cooper v. State, 275 Ark. 207, 628 S.W.2d 324 (1982). It is for the jury to determine if the evidence excludes every other reasonable hypothesis. Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974).

A firearms and tool marks examiner from the state crime lab testified that the bolt cutters found in the vehicle appellant was driving on October 13, 1989, were the same bolt cutters used to cut the lock on the barn where the stolen items were taken. Mattie Shelton testified that appellant came to her cafe the same month of the alleged breaking or entering and theft of property and sold the very items that were stolen from Matlock’s barn. Applying the evidence in the record to Ark. Code Ann. § 5-39-202(a) (1987), which defines the offense of breaking or entering, and to Ark. Code Ann. § 5-36-103(a)(l) (1987), which defines the offense of theft of property, it would appear that there is substantial evidence to find that appellant committed the offense of breaking or entering for the purpose of committing theft of property. Appellant had in his possession the bolt cutters that were directly linked to the breaking or entering offense, and when appellant sold the four items in question to persons in Mattie’s Cafe, he had knowingly exercised unauthorized control over the four stolen items which were the property of another person, the owner, Matlock, with the purpose of depriving the owner of his property.

Clearly, there is substantial evidence to support the jury verdict as is required in Jones v. State, 269 Ark. 121, 598 S.W.2d 748 (1980).

With respect to the final argument raised by appellant, he contends that he was not allowed to testify before the jury during the sentencing phase of the trial and so he could not controvert and explain the nature of his prior convictions. Ark. Code Ann. § 5-4-502(2) (1987) lists the sentencing procedures for habitual offenders and states that the defendant, if found guilty of a felony, shall have the right to hear and controvert evidence of any previous felony conviction and offer evidence in his support outside the hearing of the jury.

Appellant testified outside the hearing of the jury concerning his previous convictions and presented evidence that his prior convictions were the result of involuntary guilty pleas. The purpose of that procedure was to enable the court to determine the number of prior convictions the jury might consider in the sentencing phase. The statute does not provide that the hearing be held before the jury. It provides exactly the opposite.

There was no error and we, therefore, affirm.


author: Bobby McDaniel, Special Justice. Otis H. Turner, Justice,

text:
    CITY OF FAYETTEVILLE and Scott Linebaugh v. Dave EDMARK and Donrey, Inc. d/b/a Springdale News
    90-88
    801 S.W.2d 275
    Supreme Court of Arkansas
    Opinion delivered December 17, 1990

      Niblock Law Firm, by: Walter R. Niblock and Katherine C. Gay, and McDermott, Will & Embry, by; Steven F. Pflaum, for appellants.

      Henry Kinslow for amicus curiae Arkansas Trial Lawyers Association.

      David M. Olive, Asst. Gen. Counsel for Donrey Medial Group, for appellees.

      Bullock Law Firm, by: Bunny Bullock and Lu Hardin, for amicus curiae Arkansas Press Association.
   Bobby McDaniel, Special Justice.

This case involves an appeal from an order of the Circuit Court of Washington County directing that legal memoranda prepared by outside counsel for the City of Fayetteville be released to the public under the Freedom of Information Act (FOIA). The trial court found the documents to be covered by the FOIA and ordered the appellants, the City of Fayetteville and its acting city manager, Scott Linebaugh, (City) to produce the documents to appellees, Dave Edmark and Donrey, Inc., d/b/a Springdale News (Donrey).

To comprehend the complexity of the facts and issues presented here, a detailed summary of events and litigation maneuvering is necessary. The circumstances underlying Donrey’s request for production of documents relate to an undertaking by the City as part of the Northwest Arkansas Resource Recovery Authority (Authority) to develop and operate an incinerator and a landfill. In short, the City issued bonds, without an election, in the amount of approximately $22,000,000 and let contracts to construct the incinerator. After the Authority issued the $22,000,000 in bonds, which had been unconditionally guaranteed by the City, the public voiced strong opposition to the incinerator and landfill and voted to reject the project. The Authority then proceeded to cancel contracts and to attempt to repay the bonds, but found it was approximately $7,000,000 short of funds to repay the bondholders.

Although the City had a regular city attorney, the City retained outside counsel due to the complexity of the circumstances surrounding the disengagement process and potential litigation. The City is represented by attorneys of McDermott, Will & Emery (McDermott) based in Washington, D.C., and the Niblock Law Firm of Fayetteville, Arkansas, (Niblock) and they have been paid approximately $400,000 of public funds for fees and expenses. The attorneys have generated extensive documents analyzing the legal circumstances and potential litigation issues; Donrey filed an FOIA request seeking disclosure of these legal memoranda.

A separate suit was filed in the Chancery Court of Washington County and is referred to as the “incinerator litigation,” Robson v. City of Fayetteville, et al., (E-89-1170), and was assigned to Judge Oliver Adams. It challenges, among other things, the authority of the City to guarantee bonds of this type and attempts to invalidate an ordinance passed by the City to raise sanitation fees to cover the $7,000,000 shortfall on the bonds. The City sought a protective order from Judge Adams to block the FOIA request of Donrey. Judge Adams denied the motion for a protective order on the grounds that the proper parties were not before the court and, thus, the court lacked jurisdiction. The appellees were not parties in that action. No appellate relief of this denial was sought by the City.

The City then filed an action against Dave Edmark, the Springdale News, and others for declaratory judgment in the Chancery Court of Washington County (E-89-1443). Judge Thomas F. Butt denied the petition for lack of jurisdiction. The record reflects that the City filed a notice of appeal in the chancery court and ordered a transcript; however, the appeal was not pursued.

The prosecuting attorney, in the Circuit Court of Washington County, Criminal Division, issued a prosecutor’s subpoena for the documents covered by the Donrey FOIA request (CR-90-1). The City filed a motion to quash the subpoena and a protective order was issued by Circuit Judge Mahlon Gibson prohibiting, inter alia, the prosecutor or his staff from releasing any of the documents produced. The documents produced to the prosecutor are the same documents at issue in this case and were examined by the trial court in camera. Judge Gibson, as acknowledged by the record and counsel for appellants, left open the issue of Donrey’s right to proceed in circuit court, civil division, to obtain FOIA documents.

After the protective order to the prosecutor was issued, Donrey renewed its FOIA request. Upon refusal by the City to comply, Donrey filed suit in the Circuit Court of Washington County, Civil Division, (CIV-90-0043), to obtain the documents. The City opposed the petition asserting that the documents were not in the possession of the City, were not “public documents,” the documents would not assist the public in judging the performance of the public officials, the criminal protective order barred the release, and the release of the documents would violate the City’s right to a fair trial in the incinerator litigation. This appeal is from Circuit Judge Kim Smith’s order that the documents be disclosed.

The FOIA ws originally enacted in 1967 and is now codified at Ark. Code Ann. § 25-19-101 through 107 (Supp. 1989). Unlike many cases involving statutory interpretation, the FOIA specifically states the legislative intent.

§ 25-19-102 — Legislative intent.
It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them, or their representatives to learn and to report fully the activities of their public officials.

The intent of the FOIA establishes the right of the public to be fully apprised of the conduct of public business. The first case interpreting the FOIA was Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968), in which this court held that there was no attorney-client privilege concerning FOIA information. Laman has served as the benchmark for the interpretation of the intent of the FOIA and provides the perspective from which we view the legislative intent. This court said:

As a rule, statutes enacted for the public benefit are to be interpreted most favorably to the public. . . .We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.
The language of the act is so clear, so positive, that there is hardly any need for interpretation. . . .
Laman, supra.

Therefore, the points of error raised by appellants must be viewed in the light of the clear intent and purpose of the statute.

I. PUBLIC RECORDS

Points I and II challenge the findings by the trial court that the legal memoranda prepared by the outside attorneys, McDermott and Niblock, are documents within the coverage of the FOIA. Appellants first contend that the extensive legal memoranda are not “public records,” subject to disclosure. They contend that a) the requested memoranda do not constitute a record of the performance or lack of performance of official functions; and, b) the City’s outside counsel are not “agencies” supported by public funds. This argument is without merit.

Although not binding as precedent, an Attorney General’s Opinion, (89-095), concluded the memoranda were public records and subject to the FOIA. The trial judge, Hon. Kim Smith, stated, “. . . I think it would be ludicrous for us to say these aren’t public records. . . .” We agree.

“Public records” is defined in the FOIA at Ark. Code Ann. § 25-19-103(1) (Supp. 1989):

“Public records” means writings, recorded sounds, films, tapes, or data compilations in any form, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.

The memoranda include extensive evaluations of the propriety of the decisions and actions undertaken by City and Authority officials. For example, one document details the specifics in which the final contract varies from the terms approved by the City’s board of directors. Another record analyzes the constitutionality of the City’s undertaking to unconditionally guarantee the bonds issued by a separate entity, i.e., the Authority. The memoranda clearly could be used to evaluate the performances and decisions of the city officials, the city attorney, and Authority officials.

Counsel for the City conceded that if the documents were in the possession of the regular city attorney, instead of outside counsel, they would be subject to production under FOIA, unless the City could prevail on its arguments relating to the protective order and the fair trial issue.

In Scott v. Smith, 292 Ark. 174, 728 S.W.2d 515 (1987) documents from the litigation files of a state agency’s deputy general counsel were held subject to FOIA. This court rejected the agency’s argument that the litigation files were not subject to FOIA disclosure on the grounds of A.R.E. Rule 502 (lawyer-client privilege) and ARCP Rule 26(b)(3) (attorney work product) since there is no statutory exemption for the attorney-client privilege or attorney work product. See Ark. Code Ann. § 25-19-105(b) (Supp. 1989). Similarly, the legal memoranda presented to the trial court and reviewed in camera here are in the nature of litigation files and, as such, are “public records” within the meaning of the FOIA.

II. POSSESSION OF THE DOCUMENTS

The City’s second contention that the records are not in its possession and are thus not subject to disclosure is also without merit. The legal memoranda were in the possession of McDermott and Niblock who were retained as attorneys for the City in lieu of the regular city attorney. In fact, when Scott Linebaugh, acting city manager, was ordered to produce the records to the prosecuting attorney, it was an attorney with the Niblock firm who delivered the records. The specially retained attorneys were the functional equivalent of the regular city attorney. The City cannot avoid the FOIA requirements by substituting a private attorney for the city attorney. To condone such logic would arguably enable public officials to shield from disclosure sensitive or controversial material by hiring an outside attorney instead of using its regular city attorney. The FOIA requirements cannot be circumvented by delegation of regular duties to one specially retained to perform the same task as the regular employee or official. This would be contrary to the requirements and intent of the FOIA. See generally J. Watkins, Access to Public Records under the Arkansas Freedom of Information Act, 37 Ark. L. Rev. 741, 764 (1984). As Professor Watkins points out,

When the state or a political subdivision thereof seeks to conduct its affairs through private entities, it seems clear that those entities are for all practical purposes the government itself. It should not matter whether the activity is “proprietary” or “governmental” in nature, for in either case the government is involved in the “public business”. Thus when a county official hires a certified public accountant to conduct an audit of a county department instead of using public employees for that purpose, the CPA’s records relevant to that task should be obtainable under the FOIA.

The City has paid in excess of $400,000 in legal fees to McDermott and Niblock relating to the disengagement process, which includes advice to, and representation of, the City in the FOIA actions. These fees would certainly fall within the ambit of Section 25-19-103, and any work performed by the attorneys on behalf of the City is subject to the FOIA. Our observation in Legislative Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987), is applicable here. We said:

To agree with the appellant would be to ignore the plain and simple language of the act and deny the public access to these public records. We have never taken a narrow view of the FOIA but have always interpreted it to promote free access to public records and most favorably to the public.

In Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986), we also stated:

We conclude that the objectives of the FOIA are such that whenever the legislature fails to specify that any records in the public domain are to be excluded from inspection, or is less than clear in its intendments, then privacy must yield to openness and secrecy to the public’s right to know the status of its own affairs. We hold, therefore, that the burden of confidentiality rests on the legislation itself, and if the intention is doubtful, openness is the result.

The FOIA sets forth the specific exemptions allowed under FOIA and, unless specifically excluded, documents covered by the FOIA must be disclosed. Section 25-19-105 addresses the examination and copying of public records and provides in pertinent part as follows:

(a) Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.
(b) It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter:
(1) State income tax records;
(2) Medical records, scholastic records, and adoption records;
(3) The site files and records maintained by the Arkansas Historic Preservation Program and the Arkansas Archeological Survey;
(4) Grand jury minutes;
(5) Unpublished drafts of judicial or quasi-judicial opinions and decisions;
(6) Undisclosed investigations by law enforcement agencies of suspected criminal activity;
(7) Unpublished memoranda, working papers, and correspondence of the Governor, members of the General Assembly, Supreme Court Justices, and the Attorney General;
(8) Documents which are protected from disclosure by order or rule of court;
(9) Files which, if disclosed, would give advantage to competitors or bidders; and
(10) Personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.
****

Ragland v. Yeargan, supra, was cited with approval in Arkansas Highway and Transp. Dep’t. v. Hope Brick Works, Inc., 294 Ark. 490, 744 S.W.2d 711 (1988). In Hope Brick Works we affirmed an order directing that working papers of real estate appraisers be disclosed and observed:

Reading the intent as stated by the legislature, considering our declarations in Ragland, and noting that the Act’s exceptions do not include the information requested, we are of the opinion that the order directing disclosure was not contrary to the intent of the Act.

Consequently, we hold that legal memoranda prepared by outside counsel for the City for litigation purposes are public records within the meaning of FOIA.

III. PROTECTIVE ORDER

The appellants contend in Point III that the records are exempt from production pursuant to the protective order issued to the prosecuting attorney. This contention is without merit.

The statutory exemption relied on by the City is Section 25-19-105(b)(8), which exempts documents “. . .which are protected from disclosure by order or rule of court.” The simple answer to this contention is that the protective order relied upon applied only to disclosure by the prosecuting attorney and his employees. The record discloses that appellants’ counsel acknowledged that: “Judge Gibson said that he was not foreclosing the Springdale News from seeking their civil remedy. . . .” Thus, the protective order neither by its terms nor by the judge’s intent protected the memoranda from the FOIA disclosure requirements.

The City was denied protective orders from the Chancery Court in two separate actions. As previously noted, Chancery Judge Oliver Adams, in E-89-1170, denied, the City’s request for a protective order on the grounds that the proper parties were not before the court and, thus, the court lacked jurisdiction. Chancery Judge Thomas F. Butt denied the City’s request for a protective order, via a declaratory judgement action, (E-89-1443), for lack of subject matter jurisdiction. Neither denial was appealed. In the instance case, there was no protective order in place designed to prohibit disclosure to the public of the legal memoranda. The provisions of Section 25-19-105(b)(8) simply do not apply to the factual situation before the court.

The City includes in its argument that the records are protected from disclosure by Section 25-19-105(b)(9) which exempts “[f]iles which, if disclosed, would give advantage to competitors or bidders.” The City recognizes that to gain relief under this contention would require us to overrule Hope Brick Works, supra, which we decline to do. The appellees are not “competitors” of the City within the clear meaning of the statute.

Categorizing members of the public who may wish to learn of, and/or disagree with, actions of public officials, even to the point of litigation, does not make such a person or entity a “competitor” as envisioned by the FOIA. The public, for whose benefit the FOIA was enacted, includes both those who support and those who oppose the actions or inactions of public officials, employees or agencies, as well as those who wish to merely learn of and evaluate the actions of public officials. To interpret “competitors” to include those seeking information, such as the media, or even adverse parties in litigation, would be to create an exemption not provided by the legislature. The definition of “public” is broad and is to be liberally interpreted and means the public at large, i.e., the body politic. As noted in Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975):

The only way that electors, citizens, or any other member of the public can receive full reports of what transpires in board or committee meetings is by information obtained from the news media. Without such reports, the Freedom of Information Act is without meaning. . . .
“Statutes enacted for the public benefit should be interpreted most favorably to the public.”

The public has a right to know about public business, even when the disclosure might benefit an adverse litigant. Under the FOIA, the media, as well as adverse litigants, are members of the public and are entitled to publicly funded information. As juries in federal criminal cases are often instructed, “The Government always wins when justice is done.” See E. Devitt & C. Blackmar, Federal Jury Practice and Jury Instructions, § 15.01 (1977). Thus, enhanced risk that the City may lose litigation does not constitute an exemption.

IV. PROTECTIVE ORDER AUTHORITY

In Point IV, appellants contend that the circuit court erred in concluding it lacked authority to enter a protective order in the FOIA action that would be binding upon the chancery court in the incinerator litigation. Judge Adams, in the chancery court incinerator litigation, refused to issue a protective order, and no appeal was taken therefrom.

The circuit court did not have authority in the FOIA action to enter a protective order to be binding upon the chancery court in the incinerator litigation. Appellants rely on Arkansas Newspapers, Inc. v. Patterson, 281 Ark. 213, 662 S.W.2d 826 (1984). However, that case dealt with a circuit court closing two hearings and sealing a motion in a criminal case. The circuit judge, in an FOIA action, refused to disclose the information and open the hearing. A trial court has the inherent authority to protect the integrity of the court in actions pending before it and may issue appropriate protective orders that would provide FOIA exemption under Section 25-19-105(b)(8). Such was not the case here.

In Patterson, the protective order had been previously entered, was broad in scope, and was issued by the court with jurisdiction over the underlying litigation. Such an order is within the scope of Section 25-19-105(b)(8) which provides for exemption of “[djocuments which are protected from disclosure by order or rule of court.” We interpret this section as requiring the circuit court to grant exemption if another court has restricted disclosure of documents being sought. The FOIA court must give credit to protective orders previously issued by other courts. The circuit court in an FOIA action may grant exemptions only for the grounds specifically covered by the FOIA itself. See Laman v. McCord, supra.

The trial court in the incinerator litigation did not issue a protective order, although it had the authority to do so. The documents examined in camera in this case, however, would not be appropriate for a protective order. These documents are precisely the type envisioned by the FOIA to be produced to the public. Since there was no general protective order in place by another court to prohibit disclosure of the documents, the trial court was correct in ordering production.

V. FOIA POLICY CONSIDERATIONS

Finally, appellants assert that the trial court failed to recognize the broader consequences of ordering production of legal memoranda under the FOIA. This is a policy argument and is for the legislature. Essentially, appellants assert that the City would be denied a fair trial if it is required to produce its work product. As noted in the 1987 case of Scott v. Smith, supra, there is no attorney-client privilege or attorney work product exemption under the FOIA. In Laman, supra, in 1967, this court ruled there was no attorney-client privilege in FOIA cases.

The FOIA has not been amended to include exemptions for attorney-client privilege or for attorney work product. Such exemptions are policy decisions and are for the legislature to make. In Scott v. Smith, supra, the court unanimously rejected the public policy argument advanced by the agency that attorney-client privileged information and work product information should be exempted. The court stated:

The agency argues that policy considerations favor reversal, but we have already addressed that issue. ‘Policy decisions such as that are peculiarly within the province of the legislative branch of the government. In this instance that branch has spoken so unequivocally that its command cannot be misunderstood. Our duty is simply to give effect to its mandate.’ Laman v. McCord, 245 Ark. at 406, 432 S.W.2d at 756. Laman has stood as our interpretation of the act on this subject for nineteen years, and through those years the General Assembly has not exercised its option to amend the act to create a specific exception for the attorney-client privilege. Accordingly, we affirm the decision of the trial court.

The FOIA does exclude “working papers” under limited circumstances. See Section 25-19-105(b)(7), supra. However, trial counsels’ legal memoranda are not excluded by the FOIA and must be produced.

The City asserts production of the memoranda will deny it a fair trial. The City is not being deprived of a fair trial within constitutional standards. Realistically, the City’s position is that it may have a lesser chance of winning a trial if the memoranda are produced. Enhanced risk of losing a trial does not equate to not getting a fair trial, but is a policy decision for the legislature. In Laman v. McCord, supra, the court stated:

On the one hand, to deny to the city council the right to meet in secret with the city attorney might in some instances work to the public disadvantage. But, on the other hand, to allow the council to go into executive session at any time, upon the pretext of consulting the city attorney about legal matters, might readily open the door to repeated and undetectable evasions of the Freedom of Information Act - also to the public disadvantage. Policy decisions such as that are peculiarly within the province of the legislative branch of the government.

The public includes those on both sides of the litigation and, also, those not involved in the case. Citizens wishing to become informed as to the internal events of government are, as a practical matter, limited in their capacity to gain information from media sources. Making public information available to the public does not deprive the City (the public) of a fair trial.

The City is facing a potential liability of at least $7,000,000 as a result of actions and decisions of public officials. Citizens of Fayetteville may wish to become informed as to the contents of the memoranda to enable them to evaluate the performance of public officials. In addition, the public located elsewhere, such as Jonesboro, Little Rock, Pine Bluff, etc., may wish to become informed as to the circumstances of this case to avoid reinventing the liability wheel facing the City.

When the public is involved in litigation, this court has given deference to the public policy decisions of the legislature concerning production of litigation files of attorneys for public officials, employees or agencies. We have steadfastly ordered production of litigation files. See Laman v. McCord, supra; Scott v. Smith, supra; and Hope Brick Works, supra.

[W]e specifically rejected the argument for reversal that the court erred in holding that the Freedom of Information Act applied to litigation files maintained by attorneys representing state agencies. Refusing to create an exemption or exception to the Freedom of Information Act based upon the attorney-client relationship, we pointed out that the attorney-client privilege was not one of the Act’s exceptions.
Hope Brick Works, supra.

Production of litigation files does not equate to denial of a fair trial. The trial court controls the admissibility of evidence and the determination of applicable law and always has the inherent authority to secure the fair trial rights of litigants before it. See, e.g., Patterson, supra.

In McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989), this court dealt with the balance between the constitutional right of privacy of a private citizen who attempted to block disclosure of private documents, including attorney-client privileged documents, which fell within the public realm when seized by police at a crime scene. The otherwise private documents were subject to the FOIA and ordered produced. We continued to hold that additional exemptions are subject to creation only by the legislature and said:

First, the Freedom of Information Act should be broadly construed in favor of disclosure, and exceptions construed narrowly in order to counterbalance the self-protective instincts of the governmental bureaucracy. Second, the attorney-client privilege, A.R.E. Rule 502, is an evidentiary rule limited to court proceedings. A.R.E. Rule 101. It has no application outside of court proceedings and, therefore, cannot create an exception to a substantive act.

The FOIA is a public policy decision by the legislature that balances the right of the public to information against competing interests. It is up to the legislature to fashion additional exemptions to cover the attorney-client privilege or attorney work product. The rules of evidence and of procedure, in addition to the inherent power of a trial court to control actions pending before it, provide adequate safeguards of the appellants’ right to a fair trial. As stated in McCambridge, supra, the appellants’ arguments “could be well addressed to the General Assembly. We can only interpret the exemption as it is written.”

The trial court rendered an appropriate decision in this FOIA case. The broader consequences of disclosure are for the legislature, not the trial court. Until the legislature changes the exemptions, litigation files, including research and analysis memoranda such as before this court, are not exempt. The order of the trial court directing release of legal memoranda pursuant to the FOIA is affirmed.

Affirmed.

Holt, C. J., and Turner, J., concur in part and dissent in part.

Price, J., not participating.

Otis H. Turner, Justice,

concurring in part and dissenting in part. I concur in the result reached by the majority in this case; however, to the extent that the majority opinion may serve as precedent for the opening of an attorney’s file in response to all FOI requests, I disagree. The attorney-client privilege is well established in the law and has served the judicial process well.

The mere fact that the client is a public agency and the attorney’s fee comes from a public fund is insufficient justification for a seemingly cavalier exception to the established rule. I believe that the embrace of the FOIA should not and indeed does not extend to require disclosure of purely legal memoranda — the work product of a retained attorney that remains in the exclusive possession of the attorney and that had not been previously furnished to the public agency.

Holt, C.J., joins.


text:
    FIRST NATIONAL BANK of Fort Smith, Trustee v. MERCANTILE BANK of Jonesboro, Arkansas; and Elizabeth Doss, Clifton Morehart, Carl Powell, and James Young, Individually and on Behalf of All Other Persons Similarly Situated, Intervenors/Appellees
    89-299
    801 S.W.2d 38
    Supreme Court of Arkansas
    Opinion delivered December 17, 1990

      Friday, Eldredge & Clark, by. Elizabeth J. Robben and Thomas F. Meeks, for appellant.

      Mitchell, Williams, Selig & Tucker, by: Byron Freeland and Richard C. Jans, for appellee.

      James H. Phillips and Paul Byrd, for intervenors-appellees.
   Carolyn B. Witherspoon, Special Justice.

This appeal concerns the certification of a class action.

In June 1983, the City of Fort Smith issued Industrial Revenue Bonds in the amount of $5.9 million. The proceeds of the bonds were loaned to Arkansas Cold Storage, Inc. (Storage) for the purpose of financing the acquisition and expansion of an existing storage and public commodity warehouse facility in Fort Smith. After Storage defaulted, the appellant, First National Bank of Fort Smith (FNB), acting as trustee of the bond issue, commenced foreclosure. Subsequently, a committee of bondholders was organized, and the appellee, Mercantile Bank of Jonesboro (Mercantile), chaired that committee.

Thereafter, in July 1987, Mercantile, acting as a bondholder, initiated a lawsuit on its own behalf and on behalf of all bondholders similarly situated against FNB as trustee of the bond issue. Mercantile sued for breach of trust and negligence in the administration of the Trust and sought to maintain the action as a class action under the provisions of Ark. R. Civ. P. 23.

FNB, in its answer, denied all allegations and asserted a counterclaim against Mercantile. The counterclaim alleged that Mercantile was a co-trustee for the bond issue and that its breach of fiduciary duty and negligence was the proximate cause of its own damage. FNB also alleged that it would be entitled to contribution from Mercantile as a joint tortfeasor. Mercantile denied that it was a co-trustee of the bond issue.

On February 17, 1988, the Circuit Court of Sebastian County conducted a hearing on Mercantile’s motion to certify the action as a class action. In its order denying class certification, the trial court stated that FNB’s answer and counterclaim raised questions of fact and law pertaining to Mercantile that were not common to other members of the proposed class.

In October 1988, the appellees, Elizabeth Doss, Clifton Morehart, Carl Powell, and James Young (Intervenors), each a bondholder, moved to intervene individually and on behalf of all other persons similarly situated for their claims of breach of trust and negligence against FNB. They also moved to certify the matter as a class action pursuant to Rule 23.

A hearing was held on the Intervenors’ Rule 23 motion on May 5, 1989. At the conclusion of the hearing, an in-chamber conference was held. Counsel for the Intervenors stated that he would investigate suing Mercantile and any other parties. Mercantile announced that it would be willing to be made a party defendant by the Intervenors and that counsel would accept service on behalf of Mercantile. The circuit court then certified the matter as a class action.

FNB appeals, arguing that the trial court abused its discretion in certifying the Intervenors as party representatives as the requirement of adequacy of representation, a prerequisite for class certification under Rule 23, has not been met. We hold that the trial court did not abuse its discretion in certifying this as a class action and affirm.

FNB does not dispute that this action is appropriate for class certification. Rather, it argues that Mercantile, acting through its counsel after it was denied class representative status, recruited the Intervenors and provided them with paid legal counsel. According to FNB, the Intervenors are merely the “alter ego” of Mercantile, who is really controlling the litigation. Thus, since Mercantile could be liable to the class members, there is an appearance of a conflict of interest between the two parties. Therefore, FNB maintains that the requirement of adequacy of representation under Rule 23 has not been met.

In support of its position, FNB relies upon the following evidence presented at the Intervenors’ class certification hearing: the committee of bondholders was represented by the law firm of Mitchell, Williams, Selig and Tucker (Mitchell Law Firm); Mercantile, chairman of that committee, is also represented by the Mitchell Law Firm; the Intervenors received their information as to the lawsuit at bondholder committee meetings and from the Mitchell Law Firm; the Intervenors’ attorney was recommended by the Mitchell Law Firm; the Intervenors do not have a consistent understanding as to their financial responsibilities with respect to their attorney; none of the Intervenors had investigated any potential claims against Mercantile or any other parties. The attorneys for the Intervenors and Mercantile do not deny that they communicated, but maintain that they each exercise independent control in pursuit of their separate claims.

Rule 23 governs class action certifications. Subsection (a) provides:

Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring all before the court within a reasonable time, one or more may sue or defend for the benefit of all.

There have been very few opportunities for this court to interpret the provisions of Rule 23. The Federal Rules of Civil Procedure expressly provide that class certification is dependent upon the representative parties “fairly and adequately protect [ing] the interests of the class.” Fed. R. Civ. P. 23(a)(4). Our rule does differ somewhat from the wording of Fed. R. Civ. P. 23. However, in our leading case, we compared and contrasted our rule and the federal rule and noted that the “spirit of the federal rule is to be found in our Rule 23 even if all the words are not.” International Union of Elec. Workers v. Hudson, 295 Ark. 107, 116, 747 S.W.2d 81, 86 (1988).

So, “[w]hile it is true that subsection (a) of our rule differs from that of the federal rule, the difference is one of language only. Both set out the same basic requirements for a class action.” Id. Thus, the adequacy requirement is embodied implicitly in our Rule 23.

Subsection (d) of our rule further provides that at any stage of the litigation the court may impose terms that will fairly and adequately protect the interests of the class. “Whenever the representation appears to the court inadequate fairly to protect the interests of absent parties who may be bound by the judgment, the court may at any time” enter an order to eliminate any reference to representation of absent persons. Ark. R. Civ. P. 23(d). In this manner the trial court maintains constant control over the litigation.

We have consistently recognized that the trial judge has broad discretion as to whether or not a class should be certified. International Union of Elec. Workers v. Hudson, supra. This important principle cannot be overlooked in this case.

There are no Arkansas cases analyzing the requirement of adequacy of representation; consequently, relevant cases interpreting Federal Rule 23 are helpful in resolving the issue before us.

In Gentry v. C & D Oil Co., 102 F.R.D. 490, 493 (W.D.Ark. 1984), an antitrust case, the court analyzed Fed. Rule 23 and, in discussing the adequacy of representation requirement, noted:

The elements of the requirement are: (1) the representative counsel must be qualified, experienced and generally able to conduct the litigation; (2) that there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation.

Our inquiry must thus begin with an analysis of those elements. First, FNB does not contend that the Intervenors’ counsel is inadequate, inexperienced or unable to conduct this litigation. FNB did not raise any allegations of unethical conduct on the part of class counsel or violations of our Rules of Professional Conduct to the trial court. Further, FNB did not move to disqualify the Intervenors’ attorney from conducting the litigation. Both of these avenues have been found to be relevant to the question of whether or not a class should be certified. See In re Fine Paper Antitrust Litigation, 617 F.2d 22 (3d Cir. 1980); North Am. Acceptance Corp. v. Arnall, Golden & Gregory, 593 F.2d 642 (5th Cir. 1979); Halverson v. Convenient Food Mart, 458 F.2d 927 (7th Cir. 1972); duPont Glore Forgan v. AT&T, 69 F.R.D. 481 (S.D.N.Y. 1975).

Second, there is no evidence in the record of any conflicting interests between the Intervenors and the other members of the class. The third element or test has been stated to be “whether the representative has a sufficient interest in, and nexus with, the class to ensure vigorous prosecution of the action.” Gentry, supra at 494. The Intervenors displayed the necessary interest in this action and were familiar with the litigation. They all testified that they would have no hesitancy to sue Mercantile if advised by counsel that such was warranted. The Intervenors thus satisfied the trial court as to their ability to conduct the litigation. Therefore, the Intervenors have met all of the necessary elements with respect to the adequacy of representation requirement set forth in Gentry.

FNB argues, however, that Mercantile is the real class representative and that its potential liability to the other class members prevents adequacy of representation. First, the trial court rejected FNB’s argument that Mercantile controlled the Intervenors. This decision was based on the testimony of the four Intervenors and the statements of the attorneys for both Mercantile and the Intervenors. There was, at the very most, only an appearance of a conflict of interest. The trial judge was in the best position to assess the credibility of the witnesses. He was apparently satisfied with their testimony and with the assurances made by both attorneys. In cases where the issue before us turns heavily upon the credibility of the witnesses, we will defer to the trial judge. Ford Motor Credit Co. v. Nesheim, 287 Ark. 78, 696 S.W.2d 732, (1985), rev’d on other grounds. Second, Mercantile’s liability is a question of fact to be determined on the merits of the case. Such an inquiry into the merits has been held inappropriate in determining whether an action may be maintained as a class action under Fed. Rule 23. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974).

Also, of paramount importance is the fact that Rule 23(d) imposes a continuing duty upon the trial court to ensure that the class is adequately represented throughout the litigation. Thus, our affirmance today does not end the trial court’s role with respect to this case. If at any time the court finds that the representation by the Intervenors or their counsel is inadequate, it may require additional terms and conditions to protect against any unfairness pursuant to Rule 23(d).

The trial court properly exercised its broad discretion in certifying this case as a class action under Rule 23. The decision of the trial court is affirmed.

Affirmed.

Special Justices Steve Engstrom, George D. Ellis, and Don Eilbott join in this opinion.

Hays, Glaze, Turner, and Price, JJ., not participating.


author: Per Curiam. Tom Glaze, Justice,

text:
    Francis T. DONOVAN v. ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION
    90-342
    800 S.W.2d 710
    Supreme Court of Arkansas
    Opinion delivered December 18, 1990

      Callis Childs, for appellant.

      James Badami, for appellee.
   Per Curiam.

Petition for writ of prohibition is denied.

Glaze and Price, JJ., dissent.

Turner, J., not participating.

Tom Glaze, Justice,

dissenting. Petitioner requests this court to prohibit the Arkansas Judicial Discipline and Disability Commission from conducting a probable cause hearing on a complaint filed by Andre E. McNeil. Petitioner’s request is grounded on the fact that the Commission failed to give him due notice of the McNeil complaint.

Rule 8(D) of Ark. Jud. Disc. & Disab. Comm’n Rules provides that, if the judge is not given notice by the Commission of the complaint within 90 days of its receipt, the Commission can take no action other than to dismiss the complaint. The Commission, however, does not have to dismiss the complaint if it can show it had good cause for failing to send the judge a timely notice. Here, the Commission claims good cause was shown because it had a large number of complaints to process, and it was having to establish operating procedures, presumably since the Commission is a relatively new agency.

First, I cannot agree good cause was shown. The reasons given by the Commission certainly would be insufficient for alleviating an attorney from his or her responsibility in missing a filing deadline or notice requirement. Surely, it takes very little time to forward a letter apprising a judge that a complaint has been filed against her or him.

Second, the petitioner’s request, in my view, is jurisdictional and is comparable to speedy trial cases, wherein this court has prohibited and dismissed proceedings when a defendant in criminal proceedings is not brought to trial within twelve months from the date when she or he is charged or arrested. This court routinely considers defendants’ petitions for writs of prohibition, and upon a showing that no justification or good cause is shown for a delay in proceeding to trial, we have dismissed charges in those criminal proceedings. See A.R.Cr.P. Rule 38; see, e.g., Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10 (1979).

In sum, Rule 8(D) clearly prohibits the Commission from taking any action against a judge when it fails to notify him or her of a complaint unless the Commission can show good cause for its failure. Here, the Commission made no such showing, and the mandatory language contained in Rule 8(D) requires the dismissal of the McNeil complaint. This court’s refusal to grant the petitioner’s request merely reveals that a defendant in a criminal proceeding has a greater right to notice and due process than a judge when defending himself against charges.

Price, J., joins in this dissent.


author: Jack Holt, Jr., Chief Justice. Otis H. Turner, Justice, Tom Glaze, Justice,

text:
    ARKANSAS GAZETTE COMPANY and Max Brantley v. Thomas L. GOODWIN, et al.
    90-217
    801 S.W.2d 284
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Rose Law Firm, A Professional Association, by: Phillip Carroll, for appellant.

      Perroni, Rauls, Looney & Barnes, P.A., by: Stanley D. Rauls, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a Freedom of Information Act case. Ark. Code Ann. § 25-19-105 (1987). The issue is whether the records of an investigation of Steve Clark, conducted by the Arkansas State Police and other investigative agencies, should be closed to the public. The trial court held that the investigative file was closed to the public until after Clark’s trial. It specifically found in its order that continued publicity would impair the court’s obligation to provide Clark with a fair and impartial trial by a jury. We agree.

On July 11, 1990, appellant Max Brantley, Assistant Managing Editor of the Arkansas Gazette, requested the investigative file concerning Steve Clark from appellee Colonel Tommy Goodwin, Director of the Arkansas State Police, and appellee Christopher C. Piazza, Prosecuting Attorney for the Sixth Judicial District. The request was initially denied by Colonel Goodwin. Brantley was subsequently notified by the prosecuting attorney’s office that it would make the requested records available on July 13, 1990, at 10 a.m. for inspection at the prosecutor’s office. Criminal charges were filed against Clark, and he, simultaneously, filed a motion seeking to have the investigative file protected from disclosure and ordered sealed. Appellant, Arkansas Gazette Company, was informed by the prosecutor’s office that it intended to fully support Clark’s motion.

As a result, the appellants thereafter filed their petition for judicial review, requesting that the trial court conduct a hearing to determine if the investigative files of the state police were public records subject to public disclosure under the Arkansas Freedom of Information Act (FOIA). A hearing was conducted on the appellants’ petition on July 12, and the trial court denied the petition. The court’s written order of July 13 recited in part that all investigative agency files regarding Clark were to be closed until a trial of Clark was held. The appellants filed a petition to modify, asking the court to modify its order to conform to the action which was actually announced by the court from the bench at the conclusion of the hearing on the appellants’ petition for review on July 12. The petition to modify was denied.

The appellants argue the investigative file is a public record under the FOIA and there are no applicable exceptions which would prevent its disclosure. They further contend the trial court erred in expanding its order to close the files of all investigative agencies, including the legislative audit, until after Clark’s trial.

The appellants’ petition for review was assigned to Judge Perry V. Whitmore, who was also the assigned trial judge in Clark’s criminal prosecution. On July 12, the parties agreed to consider both the appellants’ petition for review and Clark’s motion in the criminal proceeding. The record reflects the parties argued their respective positions before Judge Whitmore primarily on the basis of whether or not the release of the investigative file would deny Clark’s due process rights to a fair trial. The appellants contended at the hearing that the public interest in having access to the file outweighed Clark’s right to a fair trial. Appellee Piazza relied upon Rule 3.8 of the Model Rules of Professional Conduct (1985), for the proposition that, as a prosecutor, he could not disseminate the requested file to the appellants. The trial court denied the appellants’ petition on the basis that continued publicity would impair its obligation to provide Clark a fair trial by an impartial jury.

The Due Process Clause of the fourteenth amendment guarantees the right of a fair trial by a panel of impartial jurors to the criminally accused in state criminal prosecutions. Duncan v. Louisiana, 391 U.S. 145 (1968). If, due to pretrial publicity, an impartial jury cannot be seated to try a defendant, his right to a fair trial is violated. Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983); Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979).

In this case, the high level of publicity and media attention threatened to interfere with Clark’s right to a fair trial. In Gannett Co. v. DePasquale, 443 U.S. 368 (1979), the Court stated that, in order to safeguard the due process rights of the accused, a trial judge has an affirmative duty to minimize the effects of prejudicial pretrial publicity, and he may take protective measures even when they are not strictly and inescapably necessary. See also Sheppared v. Maxwell, 384 U.S. 333 (1966).

In discharging his duty, the trial court weighed Clark’s constitutional right to a fair trial against the public’s right to access to public records as provided for in the FOIA and, in exercising his authority under Ark. Code Ann. § 29-19-105(b) (8) (Supp. 1989), concluded a reasonable protective measure was warranted by the circumstances: the closing of the investigation files of the state police and the files of all investigative agencies, including the legislative audit.

This court has previously noted, “ [i] f the question is whether a defendant can or cannot receive a fair trial, as required by the fourteenth amendment to the United States Constitution, then conflicting law must give way to a defendant’s right to due process.” Anderson v. State, supra. Suffice it to say, FOIA must give way in this instance to “due process.”

Affirmed.

Turner and Price, JJ., concur.

Glaze, J., dissents.

Otis H. Turner, Justice,

concurring. I concur in the result reached by the majority of this court. However, I write to offer an additional compelling reason for affirmance.

This court is committed to the proposition that openness in government is an essential ingredient in a democratic society. The legislative act which furthers that objective, the Freedom of Information Act, Ark. Code Ann. §§ 25-19-101 through 25-19-107 (1987 & Supp. 1989), is commendable and should be liberally construed to give full effect to its purpose. McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). When, however, any proceeding under the guise of freedom of information would likely hinder or impede in any manner the constitutional right of an accused to a fair trial, see Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983), then the provisions of the Freedom of Information Act must give way.

Admittedly, it is the task of the media not only to report information gathered from all available sources but also to comment upon that information by way of editorials and opinion columns and frequently, the editorializing is not limited to the section reserved for editorial comment. This is a fact of life that all who qualify as “public figures” understand and live with.

In this case, the constitutional right to a fair trial collides head to head with the public’s right to know through the statutory provisions of the Freedom of Information Act.

Anyone who has had an opportunity to review a law-enforcement agency’s investigation file knows that in many instances that file contains a hodgepodge of tips, rumors, suppositions, and hearsay — much of which may already have been or ultimately will be, determined to have no basis in fact. Such is the very nature of an “investigation” file. Moreover, much of the information, though possibly having the ring of truth, will also be found inadmissible at any trial of the case on its merits.

Assume for the moment that the investigation file is opened to the media. There can be little doubt that all of the contents of the file will be subjected to total exposure and complete scrutiny by the media, both in news reports and editorial columns, with little or no fear of accountability under the First Amendment protection afforded the media.

On the other hand, assume that the attorney for the accused may well have in his file a good and sufficient explanation or defense for each of the items of media interest contained in the investigation file. Yet, the Code of Professional Conduct Rule 3.6 prevents him from trying the defendant’s case in the media. The defendant is therefore faced with the worst-case scenario — having his or her file, with all inferences pointing to guilt, presented to the public, without rebuttal, at a time when he or she is entitled to the full and complete benefit of the constitutionally guaranteed presumption of innocence.

One may then ask why the defendant, absent his attorney, cannot refute all of the information reported from the investigation file. On the other hand, in preservation of his constitutional rights, why should he have to make such an explanation other than at trial? The answer is, of course, that he should not.

An individual’s constitutional right to a fair trial dictates that the public’s legislatively-enacted right to know be subordinated for so long as the constitutional rights of the individual may be in jeopardy.

Dale Price, Justice, concurring. The result reached by the majority is correct. It does not, however, address other issues argued on appeal concerning the Arkansas Freedom of Information Act (FOIA). The first issue concerns the application of the FOIA to the investigative file of the state police. In order for a record to be subject to the FOIA and available to the public, it must be possessed by an entity covered by the act, fall within the act’s definition of a public record, and not be exempted by the act or other statutes. Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987). This court has said on many occasions that the FOIA should be broadly construed in favor of disclosure, and exemptions construed narrowly in order to counterbalance the self-protective instincts of the governmental bureaucracy. McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989).

In the instant case the appellees contend the investigative file at issue is not a public record. The state police investigative file clearly constitutes a public record under the FOIA and as defined in Ark. Code Ann. § 25-19-103(1) (1987). In the alternative, the appellees argue the file falls within two of the exemptions enumerated in Ark. Code Ann. § 25-19-105(b)(6)(8) (Supp. 1989). I agree.

The law enforcement exemption in § 25-19-105 (b)(6) provides that “undisclosed investigations by law enforcement agencies of suspected criminal activity” are not subject to public inspection. This exemption has been construed by this court in several opinions. In City of Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988), we held that information contained in investigations conducted by the City of Fayetteville police and fire departments was not undisclosed and thus not exempt from release.'We said:

There was no ‘undisclosed investigation.’ Everyone knew about it. The Fire and Police Departments of Fayetteville had finished their investigation. The federal Bureau of Alcohol, Tobacco, and Fire Arms had investigated the matter, turned its report over to the U.S. attorney’s office, and a federal grand jury had returned an indictment. No reading of the Freedom of Information Act consistent with our decisions could support a finding that there was an ‘undisclosed investigation’ involved. Therefore, the records held by the fire and police departments are subject to disclosure under the Freedom of Information Act.

We stated in McCambridge v. City of Little Rock, supra, that “ [t]he only purpose of the exemption, as written, is to prevent interference with ongoing investigations.” We held there that photographs of the crime scene and a pathologist’s photograph made in connection with a police investigation were to be released in accordance with the FOIA. We also held the police file was subject to release despite the fact that it allegedly contained statements from confidential informants.

The investigative files at issue in City of Fayetteville and McCambridge had to do with completed police investigations. The opposite situation was presented in Martin v. Musteen, City of Rogers and Clinger, 303 Ark. 656, 799 S.W.2d 540 (1990). Pinson (Martin was Pinson’s attorney and the appellant) was charged with drug violations and his attorney requested the police investigation file with respect to the charges against Pinson. Following the police chiefs refusal to release the file, Pinson’s attorney brought action pursuant to the FOIA. At the hearing, the police chief characterized the investigation as an “ongoing” one. The prosecutor testified that Pinson’s case was part of a larger investigation and that it would continue for some time. We held that if a law enforcement investigation remained open and ongoing, it was meant to be protected as undisclosed under the FOIA.

In the case at bar the appellants contend the state police investigative file was not exempt under the law enforcement exemption. I disagree. It is my opinion that a law enforcement agency’s file is not disclosed merely because the press has published articles concerning the matter or everyone knows about it. If an investigative agency discloses a file, it obviously is not exempt under the FOIA. It also follows that the file does not necessarily become disclosed after a criminal conviction or acquittal. The file may still contain information not subject to disclosure under the FOIA.

In my view, an accused must have been acquitted or have exhausted the appeal process before a law enforcement agency’s file is subject to the public’s inspection and then only after the court determines whether there are other matters requiring protection from disclosure. These matters include, but are not limited to, (1) the right of another person to a fair trial, (2) privacy rights of individuals which should be protected, (3) the identification of confidential informants, (4) law enforcement techniques and procedures, (5) the safety of law enforcement personnel, and (6) the names of persons interviewed by police so that others will not be deterred from cooperating with police in the future. See J. Watkins, The Arkansas Freedom of Information Act (1988). The investigative file of a law enforcement agency would then be subject to disclosure under the FOIA following the above procedure.

In construing the law enforcement exemption, it is my opinion this court has erroneously applied an “ongoing” investigation distinction. The statutory exemption clearly provides that “undisclosed” investigations are not subject to public inspection. “Undisclosed” means what it says; that is, the contents of investigations which have not been made known by the law enforcement agency. Accordingly, to the extent that our holdings in City of Fayetteville and McCambridge are in conflict with this concurring opinion, I would overrule them. I would, therefore, hold that the law enforcement exemption prevented public inspection of the state police investigative file in this instance.

The next question to be addressed is whether or not the state police investigative file is exempt from disclosure under Ark. Code Ann. § 25-19-105(b)(8), which provides that “documents which are protected from disclosure by order or rule of court” are not subject to public inspection. I would also hold the file is exempt from disclosure pursuant to the above. Clark filed a motion in the criminal proceeding to have the file protected and ordered sealed. This was done simultaneously with the filing of criminal charges, and a hearing was conducted on both Clark’s motion and the appellants’ petition for review. An order was entered on July 13 which closed the police investigative file and all other investigative agency files from the public. This order clearly is the type contemplated by the General Assembly in its enactment of § 25-19-105(b)(8), and the state police investigative file is, therefore, not subject to disclosure pursuant to this exemption in my opinion.

The last issue concerns whether or not the trial court erred by expanding its order to close the files of all investigative agencies, including the legislative audit, until after Clark’s trial. The appellant formally requested access to the state police investigative file, and there was no discussion of other investigative files at the hearing on July 12. The trial court entered its order on July 13 stating:

Therefore, it is the order of this Court that the investigative file regarding this defendant be closed and not made public and that the Prosecuting Attorney, all investigative agencies, including the Arkansas State Police, and Legislative Audit, close their files to the public and that they remain closed until a trial on the merits of this matter has been held.

The appellants filed their petition to modify, asking the court to modify its order to conform to the action actually announced at the hearing on their petition for review on July 12. They contended at the hearing on their petition to modify that the court’s order was much broader than the court’s ruling from the bench. Evidence was adduced at the hearing on the appellants’ petition to modify which established that the state police had shared their investigative file with the auditors who were preparing their own investigation and audit of Clark.

I would hold the trial court’s denial of the appellants’ petition to modify was proper and its order of July 13 was not impermissibly overbroad. The trial court’s action in effect granted Clark’s motion to seal all records relevant to his trial. This was necessitated in part by the joint investigation of both the Arkansas State Police and the legislative auditors, and I cannot say the trial court erred.

Tom Glaze, Justice,

dissenting. The majority opinion is overbroad in its attempt to protect a defendant’s right to fair trial, and will serve as dangerous precedent to subvert first amendment and FOIA rights which were never intended to be limited under the Supreme Court cases relied upon by the majority. The majority cites Gannett v. DePasquale, 443 U.S. 368 (1979), for the proposition that a trial judge has an affirmative duty to minimize the effects of prejudicial, pretrial publicity, and may take protective measures even when they are not strictly and inescapably necessary. While the proposition is true, the Gannett case dealt with the issue of excluding the press and public from a pretrial hearing and did not involve the press’s or public’s right to access public records from sources outside a court proceeding. Here, the trial court not only barred the appellants’ right to view investigative police files compiled in connection with Mr. Clark’s case, it also effectively restrained them from receiving state legislative audit documents that are unquestionably public information, except for the trial court’s order providing otherwise.

The danger in the majority’s decision lies in the fact that public documents available to any citizen or member of the press can be made private and secret, thus cutting off the people’s right to further scrutinize and evaluate their public officials’ performance. Ironically, such public documents (expense vouchers) and their publication are what led to the criminal charge having been filed against Mr. Clark in the first place. If the public and press can be prevented from accessing public records from governmental agencies merely because a police department or law enforcement agency makes those records a part of its investigation, the peoples’ ability to know what is going on in their government is seriously curtailed.

The Supreme Court has said that pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 565 (1976). The decided cases “cannot be made to stand for the proposition that juror exposure to information about news accounts of the crime alone with which a defendant is charged presumptively deprives the defendant of due process.” Id. Appellate evaluations as to the impact of publicity take into account what other measures were used to mitigate the adverse effects of publicity. Id.

In the present case, the trial court appropriately considered Mr. Clark’s rights to a fair trial, but, in reviewing the record, I find no evidence or findings to justify the court’s broad protective order closing the files of the State Legislative Auditor. The trial court not only prevented appellants from obtaining the Legislative Auditor’s report of Mr. Clark’s office expenditures, it also closed them until he had a trial.

The Supreme Court has noted there are measures that may insure a defendant of a fair trial and has approved certain alternatives to the prior restraints of publication that include such measures as a change of trial venue, postponement of the trial, searching questioning of prospective jurors, sequestration of jurors —- to name a few. See Stuart, 427 U.S. at 563, 564. A heavy burden exists in demonstrating, in advance of trial, that without prior restraint a fair trial will be denied. Stuart, 427 U.S. at 569.

The majority court fails to mention or quote from the record where the trial court ever considered evidence and made findings that could justify sealing public documents, such as those generated by the Legislative Auditor in this matter. Nor can I find where the trial court made findings that other alternatives were considered short of removing access to, and thereby preventing the publication of, such documents by the appellants. At the very least, the Legislative Audit report and its underlying documents should have been available when the Clark trial commenced, since, at that point, the trial court by various measures could limit the jurors’ exposure to publicity and limit, as well, what the contending lawyers, police and witnesses may say to anyone. See Stuart, 427 U.S. at 563, 564.

In conclusion, while I am aware this matter appears moot since the Clark trial has been completed, I believe this court should hold the trial court’s order was overbroad and was not supported by a proper analysis or findings. Admittedly, the press’s right of access to certain information is not absolute and must be balanced against a defendant’s sixth amendment right to fair trial. However, I am convinced that when public records or documents are sought to be closed, a defendant, especially a public official, faces a greater burden when trying to show his or her right to a fair trial might be impaired by the release of those documents. Regardless, certain tests must be satisfied to justify abrogating the right of access by examining evidence before the trial judge when the protective order was entered, viz., (1) whether intense and pervasive pretrial publicity would or might impair the defendant’s right to a fair trial; (2) whether other alternatives or measures to closure would insure the defendant a fair trial; and (3) whether closure will be effective in protecting the defendant’s right to fair trial. See Stuart, 427 U.S. at 562-567; Seattle Times Co. v. U.S. District Court, 845 F.2d 1513 (9th Cir. 1988). In the present case, the trial court failed to fully consider each of these tests and enter its findings. Accordingly, because the record fails in these significant respects, I believe the trial court erred in issuing its protective order. See Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983).


author: Jack Holt, Jr., Chief Justice.

text:
    Kenneth Dale HAMM v. STATE of Arkansas
    CR 90-172
    800 S.W.2d 711
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Gibbons Law Firm, P.A., by: David L. Gibbons, for appellant.

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

The appellant, Kenneth Dale Hamm, was convicted of aggravated robbery and sentenced, as an habitual offender, to forty years imprisonment to run concurrently with another sentence imposed in the same county. Hamm’s sole point for reversal is that the trial court erred in denying his motion, made pursuant to A.R.E. Rule 105, for a limiting instruction. Because Hamm has not demonstrated any prejudice, we affirm the conviction and sentence.

On August 21,1986, W.L. Ferguson was robbed at his place of business in Russellville, Arkansas by a man holding a small caliber revolver. After taking approximately $1300 in cash, the robber fled and was seen by Ewing Caudle getting in a car being driven by another man. Mr. Caudle told the police the car was old and “looked like a Chevrolet.” At trial, Mr. Caudle also described the car as having a dark color.

The day following the robbery, Lieutenant Aaron Duvall spotted a car, similar to the one described by Mr. Caudle, parked in front of Hamm’s apartment. Hamm was arrested and taken into custody. Police obtained a consent to search the apartment and discovered a small caliber revolver in the attic.

Hamm later gave an incriminating statement to the Russell-ville Police Department in which he stated that Raymond Graves robbed Ferguson and he (Hamm) drove the car. He stated that Graves got $1,000 from the robbery and gave Hamm $400 of the stolen money. Hamm further told the police that he put the pistol in the attic when he arrived home.

At trial, Lt. Duvall testified that he was told by a Russellville police officer that the get-away car was “... a dark color or black Chevrolet Impala, two door about a 1972 or 1973.” At this point, Hamm’s attorney objected and, outside the hearing of the jury, requested the court to admonish the jury that the statement was only to be considered for the purpose of understanding why Lt. Duvall acted on the description of the car and arrested Hamm and not for the truth of the matter asserted. The trial judge refused the request, stating: “I don’t believe it’s a situation that requires an admonishment because it’s not being offered for the truth and there’s no prejudice that attaches one way or the other.” Lt. Duvall subsequently testified that the trunk of the car had a hole in it where the lock had been.

Hamm first argues, and we agree, that the trial court’s refusal to admonish the jury violated A.R.E. Rule 105 which states:

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

The testimony here would have been inadmissible hearsay if offered for the truth of the matter asserted; however, it was offered to show that Lt. Duvall merely acted on the description of the car given him by Russellville police officers. .Hamm properly requested the court to admonish the jury to limit its consideration of this evidence and the court erred in refusing to give the limiting instruction. See Bliss v. State, 288 Ark. 546, 708 S.W.2d 74 (1986); McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986).

Nevertheless, Hamm has not demonstrated that he was prejudiced by this error. We do not reverse for an alleged error, absent a showing of prejudice. Goldsmith v. State, 301 Ark. 107, 82 S.W.2d 361 (1990); Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990).

Hamm characterizes the state’s case against him as “extremely weak” and hinging only on 1) the identity of Hamm’s car as the get-away car, 2) the seizure of a small caliber weapon from Hamm’s attic, and 3) the testimony of Officer Hunt that Hamm made an incriminating statement. Hamm points to the fact that the victim could not positively identify the gun found in Hamm’s attic as the one used in the robbery and to the fact that no one identified Hamm as the driver of the get-away car. He also contends that his confession to Officer Hunt would have carried considerably less weight if the jury had not considered Lt. Duvall’s description of Hamm’s vehicle since the only other witness to describe the car was Mr. Caudle, who testified only that it was a dark old model car that resembled a Chevrolet.

As the state aptly points out, the detailed statement Hamm gave to the police, related by officer Hunt at trial, provided overwhelming support for the state’s case against him. Hamm described how he and Graves drove over to Ferguson’s business in the Impala, which belonged to Hamm and his wife. He related how he dropped Graves off and later picked him up as Graves came running back out of the building. He stated that Graves was wearing a reddish colored shirt, a fact corroborated by Mr. Caudle. Hamm stated that his share of what he believed to be $1000 in stolen cash was $400, but that he later flushed the money down the toilet when the police came to his home the following day. Hamm revealed that the pistol used in the robbery was hidden in his attic and contained six rounds of ammunition. Officer Hunt stated that the gun found by police investigators matched the caliber of shells located in a bread box, where Hamm said the shells were hidden, and that the pistol did, in fact, contain six rounds of ammunition. An accused’s confession, along with other proof that the offense was committed, will support a conviction. Grimes v. State, 295 Ark. 426, 748 S.W.2d 657 (1988). Here, the evidence is more than sufficient to convict. We cannot say that Hamm suffered any prejudice as a result of the trial court’s failure to admonish the jury with regard to Lt. Duvall’s testimony.

Affirmed.-