author: Andree Layton Roaf, Justice. Tom Glaze, Justice,

text:
    Charles L. LONG et al. v. Leslie B. LAMPTON and Ergon, Inc.
    95-774
    922 S.W.2d 692
    Supreme Court of Arkansas
    Opinion delivered May 28, 1996
    [Petition for rehearing denied July 1, 1996.]

      Shackleford, Shackleford & Phillips, P.A., by: Dennis L. Shackleford and Jerry Watkins, for appellants.

      Wright, Lindsey & Jennings, by: Sammye L. Taylor, for appellees.

      JESSON, C.J., and GLAZE, J., would grant. Dudley, J., not participating.

   Andree Layton Roaf, Justice.

This appeal arises from a minority shareholders’ action for breach of fiduciary duty. Appellants Charles Long and other members of the Long family, minority shareholders of Lion Oil Company (“Lion”), filed an action against appellees Ergon, Inc. (“Ergon”), the largest shareholder of Lion, and Leslie B. Lampton, president of both Ergon and Lion, alleging breach of fiduciary duty in the implementation of a corporate recapitalization plan. The Longs appeal a jury verdict in favor of Lampton and Ergon. They assert that the trial court 1) erred in denying a motion for new trial on the ground that the verdict was clearly against the preponderance of the evidence; 2) erroneously instructed the jury that they had the burden of proving Lampton and Ergon owed them a duty as a fiduciary; and 3) erroneously instructed the jury that Lampton and Ergon could rely on the business-judgment rule. In their cross-appeal, Lampton and Ergon raise five points to be addressed only if we reverse on direct appeal. We find no error and affirm.

Charles L. Long and Leslie B. Lampton, as president of Ergon, were among five investors who came together in 1985 to purchase a refinery, pipeline, and other related assets located in El Dorado, Arkansas. Long is one of four brothers involved in various business ventures in Union and Miller Counties, including Long Brothers Oil Company. Ergon is a family owned corporation headed by Lampton and based in Jackson, Mississippi. The new corporation became known as Lion Oil Company. It was determined that $24 million was needed to acquire the refinery and sustain its operation. The longtime attorney of Charles Long also served as counsel for Lion and drafted the Pre-Incorporation Agreement. Under this agreement, each investor was to obtain a letter of credit from a financial institution, in the amount of $2 for each $1 par value subscribed in stock. Of the 8 million shares of stock originally issued, Charles Long invested $1.5 million in cash with a letter of credit from First Commercial Bank (“First Commercial”) in the amount of $3 million; he later transferred some of his stock to other members of his family. Ergon invested $4.5 million and provided a $9 million letter of credit. Several other investors were later brought into the corporation; Ergon ultimately owned 43.3% of the stock and the Longs owned 18.6%.

Ergon contracted to manage Lion in exchange for a fee of 20% of the net profits. This management was overseen by Lion’s seven-member board of directors, which met monthly and received information concerning all aspects of the refining operation, including financing needs. Long served as chairman of the board from Lion’s inception until April 1989. His attorney also served on the board, although he held no stock in the company.

Because Lion’s business of refining oil required periodic purchases of crude oil in tanker-size lots, Lion needed to have access to substantial amounts of credit from a commercial lender. Lion originally operated under a $60 million line of credit from General Electric Capital Corporation (“GECC”) secured by Lion’s inventory, its receivables, and a pledge of the shareholders letter of credit. During the initial four years of operation, the directors periodically discussed eliminating the shareholders letters of credit but decided not to do so because of the need for the additional credit they provided to Lion.

The events which gave rise to this lawsuit and appeal took place primarily between February and September 1989. As the May 1, 1989, expiration date of the financing arrangement with GECC approached, the board directed Lion’s chief financial officer to locate a more advantageous line of credit. The board subsequently selected First National Bank of Boston (“Bank of Boston”) to replace GECC because its credit line was less expensive and more generous in the valuation it placed on Lion’s inventory and receivables. Lion’s directors, including Long, voted unanimously on February 28, 1989, to make the change form GECC to Bank ofBoston effective May 1, 1989.

Although the Bank ofBoston did not require Lion to provide shareholders’ letters of credit, it did agree to provide additional credit per dollar of each shareholder letter of credit offered by Lion, therefore making available to Lion an additional $16 million in credit. The Bank ofBoston would not accept transfer of the GECC letters of credit, but required the issuance of new letters in its favor or amendments which named it as beneficiary.

The Longs’ initial $3 million letter of credit with First Commercial had been issued on July 1, 1985. Although the preincorpo-ration agreement did not set a time limit for the shareholders’ letters of credit, the banking institutions which agreed to issue them were told that they would be needed for only three to five years, or until Lion had established sufficient credit on its own. Each shareholders’ letter of credit provided that it could be called in the event the lending institution failed on or before April 1 of any year to extend or renew it for an additional year. Therefore, if First Commercial failed to renew the Longs’ letter of credit by April 1, this would be considered a default which would allow GECC to demand payment on the letter of credit. If the Longs’ letter of credit was called by GECC, First Commercial would in turn demand $3 million from the Longs who could then look to Lion for repayment.

The Longs’ letter of credit was renewed for 1988-89 and was “irrevocable and transferable.” However, because of certain financial reversals suffered by the Longs, First Commercial advised them in February 1989, that it would not renew their letter of credit for 1989-90. At the March 1989 board meeting, Charles Long told the other board members, including Lampton, of the bank’s intention not to renew his letter of credit.

GECC attempted to call the Longs’ letter of credit and demanded payment from First Commercial on April 13, 1989. Upon learning of GECC’s call on the letter of credit, Long and his attorney sent correspondence to First Commercial and GECC threatening litigation unless the demand for payment was withdrawn. Lampton learned in a telephone conversation with an officer of First Commercial on April 13, 1989, that First Commercial would agree to extend the letter of credit for one more year, however, he was advised that the letter would be issued as nontransferable. GECC withdrew its demand for payment after the letter of credit was renewed.

At the annual shareholders meeting on April 27, 1989, Lamp-ton was elected chairman of the board to replace Charles Long, who had been chairman since 1985. Two of Lampton’s sons and the son of another substantial shareholder were elected to replace three other board members.

Lampton testified that after learning of the Longs’ plight at the March Board of Directors meeting, several shareholders complained that it would be unfair for the Longs to maintain the same amount of stock while withdrawing two-thirds of the capital they had agreed to provide because they would or could not renew their letter of credit. According to Lampton, he was requested by other shareholders to find a way to address this inequity. At the April 27, 1989 board meeting, Lampton provided a draft recapitalization plan prepared by Lion’s attorneys in Mississippi who had been working on the company’s transaction with the Bank of Boston.

The recapitalization plan was approved at a September 1989 shareholders’ meeting and granted each shareholder the right to acquire at $.10 per share, one additional share of stock for each dollar in letters of credit placed with the Bank of Boston. According to Lampton, this plan was designed to encourage shareholders to put up new letters of credit by acquiring more stock which could be pledged as collateral. The plan further provided for the number of shares to be increased from 10 million to 30 million followed by a reverse stock split to reduce the number of shares. Because they were unable to put up letters of credit and thereby purchase additional shares of stock, the Longs’ 1.5 million shares were reduced to 675,000 and their $1.5 million investment reduced to $675,000. It is this loss in their investment which gave rise to the Longs’ action against Lampton and Ergon.

1. Motion for new trial

The Longs first argue that the trial court erred in denying their motion for new trial because the verdict was clearly against the preponderance of the evidence regarding Lampton’s breach of his fiduciary duty. Lampton, and consequently Ergon, breached their fiduciary duty, according to the Longs, when Lampton failed to either timely advise the Longs that First Commercial would not issue a transferable letter of credit which would have allowed them the opportunity to request a call of the letter of credit, or to act within his authority to require First Commercial to issue a transferable letter of credit.

On appeal, this court’s standard for reviewing the denial of a motion for new trial is whether there is any substantial evidence to support the jury verdict. Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992). In determining the existence of substantial evidence, we must view the evidence in the light most favorable to the appellee. Egg City of Arkansas, Inc. v. Rushing, 304 Ark. 562, 803 S.W.2d 920 (1991). Evidence favorable to the appellee is given the benefit of all reasonable inferences permissible under the proof. Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988). Substantial evidence compels a conclusion one way or the other and is more than mere speculation or conjecture. Ray, supra.

While a trial court has some discretion in setting aside a jury verdict, there is no longer the broad discretion that this court formerly recognized. Ray, supra. The trial court is not to substitute its view of the evidence for that of the jury’s unless the jury verdict is found to be clearly against the preponderance of the evidence. It is only where there is no reasonable probability that the incident occurred according to the version of the prevailing party or where fair-minded men can only draw a contrary conclusion that a jury verdict should be disturbed. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970).

The standard of conduct for directors of a corporation is set out in Ark. Code Ann. § 4-27-830 (Repl. 1996), which provides in pertinent part:

A. A director shall discharge his duties as a director, including his duties as a member of a committee:
1. In good faith;
2. With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and
3. In a manner he reasonably believes to be in the best interest of the corporation.

A person standing in a fiduciary relationship with another is subject to liability to the other for harm resulting from a breach of the duty imposed by the relationship. Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996); Restatement (Second) of Torts § 874 (1979). In the search for inherent fairness and good faith to a corporation and shareholders, conduct of directors must be subjected to “rigorous scrutiny” when conflicting self-interest is shown. Hall v. Staha, 314 Ark. 71, 858 S.W.2d 672 (1993). The duty of good faith requires “honesty in fact in the conduct or transaction concerned.” Ark. Code Ann. § 4-1-201 (Supp. 1995).

The Longs contend that it is significant that First Commercial’s Executive Vice President, Ed Henry, told Lampton on April 13, 1989, that the bank would not renew the Long Brothers letter of credit on a transferable basis. They assert that had Lampton brought this to their attention, they could have used the threat of a GECC call to force First Commercial to issue a transferable letter of credit. However, GECC did effectively call Longs’ letter of credit with First Commercial. This, of course, would have created a $3 million debt that the Longs would have to repay to First Commercial. The Longs’ attorney testified that they asked GECC to not call the letter of credit and threatened litigation against GECC and First Commercial Bank if they continued with this course of action. First Commercial consequently agreed to extend the letter of credit for an additional year, however it was not transferable and thus terminated upon the expiration of the GECC financing on May 1, 1989. The Longs make much of the fact that an April 14 letter sent by Henry to Lampton confirming their conversation of April 13, and copied to Charles Long and his attorney was not postmarked until May 8, and was not received by them until May 10, after the nontransferable letter of credit had been issued by First Commercial. However, the bank sent this letter, not Lampton, and there was no evidence that Lampton was involved in causing the letter to be delayed. Moreover, although the attorney for the Longs reviewed the Longs’ letter upon its renewal, he testified that he did not notice that it was non-transferable.

The Longs argue in the alternative that Lampton should have used his leverage with GECC to force First Commercial to issue a transferable letter of credit. Lampton testified that First Commercial was the Longs’ lender — not his or Lion’s, and that he felt that it was not his responsibility to tell Long or Long’s attorney that he knew that First Commercial was not going to issue a transferable letter of credit.

The Longs also argue that Lampton breached his fiduciary duty because he knew that the Longs were not able to transfer their letter of credit prior to finalizing the arrangement with the Bank of Boston which involved shareholder letters of credit. Even though the Bank of Boston did not originally require shareholder letters of credit, Lion’s board concluded that letters of credit were necessary to obtain additional financing and to enable Lion to purchase foreign oil. The Longs’ attorney testified that had he thought about it, he would have concluded that because of their financial reversals, the Longs would not be able to extend their letter of credit with First Commercial. Lampton, on the other hand, testified that he had no idea of the Longs’ banking connections, and that he assumed that the Longs would be able to obtain a letter of credit from another lending institution. However, because the Longs had experienced financial difficulties since their initial letter of credit was issued by First Commercial in 1985, they were not able to obtain a letter of credit from other lenders. Lampton denied that he devised the recapitalization plan to take advantage of the Longs’ financial difficulties, and testified that it was the Longs’ threat to sue GECC and First Commercial which caused the Bank of Boston to refuse to accept transfer of the shareholders letters of credit.

The weight and value to be given to the testimony of witnesses in such matters is in the exclusive province of the jury. Ray, supra. Here, fair-minded persons could conclude that Lampton breached no fiduciary duty in that loyalty and good faith did not compel Lampton to assume, first, that he knew more about the Longs’ banking relationships than they did and second, that the Longs, who were represented by an attorney in their dealings with First Commercial, needed him to take over negotiations with the bank to obtain more favorable terms for their letter of credit. As there is substantial evidence to support the verdict, we cannot say that the trial court erred in denying the motion for new trial.

2. Duty of a Fiduciary

The Longs next assert that the trial court erred by incorrectly instructing the jury that they had the burden of proving that Lamp-ton owed them a duty as a fiduciary. The trial court instructed the jury that the Longs had the burden of proof as to each of the following four essential propositions:

First: That they have sustained damages.
Second: That Leslie B. Lampton, Sr., owed plaintiffs duties as a fiduciary.
Third: That Leslie B. Lampton, Sr., breached his fiduciary duties to the plaintiffs.
Fourth: That such breach of fiduciary duties was a proximate cause of plaintiffs’ damages.

We agree that it was error to instruct the jury that the Longs had the burden of proving that Lampton owed them a duty as a fiduciary.

This court has repeatedly stated the issue of what duty is owed, if any, is always a question of law. First Commercial Trust Co. v. Lorcin Eng’g., 321 Ark. 210, 900 S.W.2d 202 (1995). Further, it is the duty of the judge to instruct the jury and each party to the proceeding has the right to have the jury instructed upon the law of the case with clarity and in such a manner as to leave no grounds for misrepresentation or mistake. Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992).

An erroneous instruction which is likely to mislead the jury is prejudicial. Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991). However, we have also held that although we will presume prejudice from the giving of an erroneous instruction, the error may be rendered harmless by other factors in the case. Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993); Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993).

During the trial, Lampton testified that “I recognize that I had a duty as a shareholder and a director to Mr. Long is another shareholder. I recognize that I have a duty to treat all of the shareholders fairly and equally in this situation.” Lampton also testified that “[a]ll parties have a fiduciary duty, including a duty of fairness and loyalty and not taking advantage of the other.”

Lampton’s counsel also admitted the existence of such a duty in his closing argument:

We do not deny that Mr. Lampton had a duty. He had a duty to the other shareholders, to the other directors, to his corporation as a company, including all of its employees. . . . So, we do not deny that element. We will concede, and do not dispute that a duty existed.

Finally, the following instruction was given immediately after the charge which erroneously advised that the Longs had the burden of proving that Lampton owed them a duty:

Directors, officers and shareholders of a corporation owe fiduciary duties of care, good faith and loyalty to each other.

In St. Louis Southwestern Railway Co. v. Grider, 321 Ark. 84, 900 S.W.2d 530 (1995), this court stated that jury instructions should not be reviewed in isolation, but rather considered as a whole in determining whether the applicable law has been given to the jury.

In the present case, the testimony of Lampton and the statements of his counsel, along with the instruction which advised the jury of the fiduciary duty owed by directors, officers, and shareholders of a corporation rendered harmless the erroneous instruction.

3. Business-judgment rule

For their third point, the Longs contend that the trial court erred by instructing the jury that Lampton and Ergon may rely on the business-judgment rule. The trial court gave the following instruction over the objection of the Longs:

The Business Judgment Rule is a presumption that in making a business decision, the directors or officers of a corporation acted on an informed basis in good faith and in an honest belief that the action was in the best interest of the corporation. Here defendants may rely on the protection of the Business Judgment Rule if they establish by a preponderance of the evidence that there was a predominating corporate purpose for their actions and that they acted in good faith.

This court has stated that two elements must be satisfied in order for the business-judgment rule to be invoked. First, its protection can only be claimed by disinterested directors whose conduct otherwise meets the tests of business judgment. Second, to invoke the rule, directors have a duty to inform themselves of all material information reasonably available to them prior to making a business decision. Having become so informed, they must then act with requisite care in discharge of their duties. Hall v. Staha, 303 Ark. 673, 800 S.W.2d 396 (1990).

The Longs argue that Lampton and Ergon were not entitled to this instruction because they were not disinterested. This contention was also raised in Smith v. Leonard, 317 Ark. 182, 876 S.W.2d 266 (1994). However, in Smith, we affirmed the chancellor’s determination that there was a predominating corporate purpose for the transaction, even though Leonard also received a benefit.

We further agree with the Court of Appeals of Ohio that “disinterested directors” does not mean indifferent directors, or directors with no stake in the outcome. Koos v. Cent. Ohio Cellular Inc., 641 N.E.2d 265 (Ohio App. 8 Dist 1994). If that were so, shareholders could never be directors or officers. Id. Disinterested directors are those who “neither appear on both sides of the transaction nor expect to derive any person financial benefit from it in the sense of self-dealing, as opposed to a benefit which devolves upon the corporation or all stockholders generally. Id. The decisions of disinterested directors will not be disturbed, according to Koos, if they can be attributed to any rational business purpose. Id. Self-interest, alone, is not a disqualifying factor even for a director. Cede & Co. v. Technicolor, Inc. 634 A.2d 345 (Del. 1993). To disqualify a director, for rule rebuttal purposes, there must be evidence of disloyalty. Id.

Under the recapitalization plan, the Longs and all other Lion shareholders had the right to purchase additional shares of Lion stock on the basis of letters of credit provided for the benefit of the Bank of Boston. By giving all shareholders the right to purchase additional shares at $.10 per share, the plan provided a means of obtaining additional collateral for a letter of credit. Lampton testified that even if a shareholder could not obtain a letter of credit, stock purchase rights could be sold to recoup some of the investment. Clearly, any benefit from the recapitalization plan flowed not only to Lampton and Ergon, but to all other shareholders as well.

Moreover, the trial court instructed that Lampton and Ergon were not entitled to rely on the business-judgment rule unless there appeared to be a predominant corporate purpose for their actions. Lampton testified to several reasons for the recapitalization plan. Other shareholders were unwilling to allow the Longs to maintain their percentage of interest in Lion if they did not put up a letter of credit, and threatened to also not renew their letters of credit. The letters of credit were deemed necessary by the board because they allowed Lion to obtain a larger line of credit with the Bank of Boston. Individual shareholders were able, through the plan, to increase their amount of collateral in the company, and thereby increase the amount of stock owned by each shareholder. Each shareholder, not just Ergon, was able to benefit from this plan. Consequently, we cannot say that the trial court erred in allowing reliance on the business-judgment rule.

4. Cross-appeal

On cross-appeal, Lampton and Ergon raise five points to be addressed only if the judgment is reversed on direct appeal. Since we affirm on direct appeal, we do not consider the issues raised in the conditional cross-appeal.

Affirmed on direct appeal; cross-appeal moot.

Jesson, C.J., and Glaze, j., dissent.

DUDLEY, J., not participating.

Tom Glaze, Justice,

dissenting. Trial attorneys and members of the bench should take particular note of this decision, because it represents this court’s change in case law involving the giving and prejudicial effect of (1) erroneous conflicting jury instructions and (2) inherently erroneous instructions. As this court ruled in Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987), it is settled law that it is prejudicial error for the court to give instructions which are directly conflicting and calculated to mislead the jury. See also Chicago Mill & Lumber Co. v. Johnson, 104 Ark. 67, 147 S.W. 86 (1912); McCurry v. Hawkins, 83 Ark. 102, 103 S.W. 600 (1907); St. Louis, I.M.& S. R. Co. v. Beecher, 65 Ark. 64, 44 S.W. 715 (1898). It is also well settled that an inherently erroneous instruction cannot be cured by a correct instruction. MoPac Railroad Co. v. Boley, 251 Ark. 964, 477 S.W.2d 468 (1972); Clark v. Duncan, 214 Ark. 83, 214 S.W.2d 493 (1948); Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W.2d 304 (1948); Mo. Valley Bridge & Iron Co. v. Malone, 153 Ark. 454, 240 S.W 719 (1922). Believe it or not, the majority court has decided in this case today that inherendy erroneous and directly conflicting instructions are no longer presumed prejudicial error.

This case centers on a dispute between the majority shareholders, Leslie Lampton, Sr., and Ergon, Inc., and the minority shareholders, the Longs, and whether the majority and its management representatives breached their fiduciary duties owed the Longs. While the question as to whether Lampton and the other majority shareholders owed the Longs a duty as a fiduciary is a matter of law, the trial court erroneously submitted this question as a factual issue in instruction no. 9 as follows:

Plaintiffs claim damages from Ergon, Inc. and Leslie B. Lampton, Sr., and have the burden of proving each of four essential propositions:
First: That they have sustained damages.
Second: That Leslie B. Lampton, Sr., owed plaintiffs duties as a fiduciary.
Third: That Leslie B. Lampton, Sr., breached his fiduciary duties to the plaintiffs.
Fourth: That such breach of fiduciary duties was a proximate cause of plaintiffs damages.
If you find from the evidence in this case that each of the propositions has been proved, then your verdict should be for the plaintiffs and against the defendants Leslie B. Lampton, Sr., and Ergon, Inc. But, on the other hand, you find from the evidence that any of these propositions has not been proved then your verdict should be for Ergon, Inc., and Leslie B. Lampton, Sr. (Emphasis added.)

As can be seen by the foregoing language (and as pointed out by the Longs), the jury is told that, if it finds each of the four essential conditions to exist (including Lampton owed the Longs duties as a fiduciary), the jury should return a verdict for the Longs. But if the jury finds that any one of the four propositions has not been proved, the jury’s verdict should be for Lampton and Ergon. In other words, the instruction in effect “binds” the jury to return a verdict based only on such instruction. See Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W.2d 304 (1948).

Lampton and Ergon concede the second paragraph in instruction no. 9 is incorrect, but contend that mistake was cured in two ways: (1) In their closing argument, they said, “We do not deny that Mr. Lampton had a duty.”, and (2) instruction no. 10 cured any defect in no. 9 by informing the jury, “Directors, officers and shareholders of a corporation owe fiduciary duties of care, good faith and loyalty to each other.”

Lampton’s and Ergon’s two contentions are -without merit for several reasons. One, the jury rendered a general verdict in Lamp-ton’s behalf, and under the erroneous second paragraph and binding effect of instruction no. 9, the jury may well have reached its verdict by finding Lampton, Sr. owed no fiduciary duty to the Longs. Two, while Lampton and Ergon argue instruction no. 10 cured the error in no. 9, I would first point out that no. 10 gave only a general statement of law, and it never stated that, as a matter of law, Lampton and Ergo owed any fiduciary duties to the Longs. Concerning Lampton’s and Ergon’s contention that they cured the erroneous portion of instruction no. 9 by not denying they owed the Longs fiduciary duties, I note that they offer no citation of authority supporting such an argument and I am aware of none. Four, it is also difficult to understand any logic in Lampton’s and Ergon’s (now this court’s) argument that the error in instruction no. 9 was cured by no. 10. Assuming instruction no. 10 was intended to relate to the jury that Lampton owed fiduciary duties to the Longs, it still directly conflicts with the directions given in no. 9.

In sum, instruction no. 9 contained an obvious mistake which is conceded by all parties. Assuming, as we must, the jury followed the direction in that erroneous instruction, the jury could well have decided in Lampton’s favor because it found Lampton and Ergon owed the Longs no fiduciary duties. No other instruction could cure such an error.

Finally, I need to mention the majority opinion’s unfortunate citations to cases such as Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991); Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993); and Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913 (1993), in support of the court’s assertion that the error committed here could be harmless. Those cases have nothing to do with a binding or an inherendy erroneous instruction as we have before us here. Again, inherently erroneous instructions cannot be cured, and Arkansas law has so held for a century. It is disappointing this court fails to recognize this simple distinction when reviewing civil instructions.

For the above reasons, I would reverse and remand this cause.

JESSON, C.J., joins this dissent.


source: Caselaw Access Project

author: ANDREE Layton Roaf, Justice.

license: Public Domain

text:
    Aaron LOVE v. STATE of Arkansas
    CR 95-1188
    922 S.W.2d 701
    Supreme Court of Arkansas
    Opinion delivered May 28, 1996

      Kearney Law Offices, by: Jeffery H. Kearney, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Neuman, Asst. Att’y Gen., for appellee.
   ANDREE Layton Roaf, Justice.

Appellant Aaron Love was convicted by a jury of two counts of aggravated robbery; he was sentenced to twenty years’ imprisonment on each count, with the sentences to be served consecutively. Love raises four points on appeal, including a challenge to the sufficiency of the evidence. We affirm.

At trial, Rebecca Brooks testified that on April 16, 1994, she was a passenger in a car driven by Elson Rea. While the vehicle was stopped, someone opened Brooks’s door, grabbed her purse, and struck her in the mouth when she refused to release the purse. Brooks observed two men flee with her purse, but she could not identify either of them. At trial, Elson Rea identified Aaron Love as the person who grabbed Brooks’s purse and struck her. Rea also testified that he had identified Love in a “photo book” which the police showed him several days after the incident.

On April 23, 1994, Ruby Joe Hairston arrived at her home and exited her vehicle. She was approached by a man holding a shotgun or rifle; the man demanded that she give him her purse. Hairston handed the man her purse, and he fled. Hairston identified Love as the perpetrator at a line-up conducted the evening of the robbery and at trial.

In addition, Hairston’s twelve-year-old son observed a Chevrolet Cavalier leaving the area of the robbery, and a Cavalier was found abandoned two blocks from the robbery. The vehicle had a flat tire, and three subjects reportedly fled on foot. Angela Smith testified that she owned a Chevrolet Cavalier which she loaned to Love on April 23, 1994. She testified that she did not see her car again until 12:30 the next morning at the police department. The car was in good working condition when Smith loaned it to Love; however, a tire and an axle were damaged when the car was recovered.

We first consider Love’s argument that the trial court erred in denying his motion for a directed verdict. See Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Love, however, is procedurally barred from challenging the sufficiency of the evidence because he failed to renew his motion for directed verdict at the close of all of the evidence. Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992); see also Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995). The failure to challenge the sufficiency of the evidence at both the close of the state’s case and the close of all of the evidence “will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.” Ark. R. Cr. P. 33.1 [formerly Ark. R. Cr. P. 36.21(b)]; see also Heard v. State, supra; Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994); Brooks v. State, supra.

Love also contends that the trial court committed prejudicial error by (1) misinforming him, on the eve of trial, of the applicable sentencing procedure and (2) improperly and erroneously identifying him to the jury as an habitual offender. These issues, however, are also not preserved for appellate review. Love’s counsel did not object to either the trial court’s statements regarding the applicable sentencing procedure or the trial court’s reference to Love as an habitual offender, nor did Love’s counsel even inform the trial court of the alleged errors.

As to the first point, a conference was held on the morning of the trial because Love had “some questions about what a jury trial was all about.” Both Love and his counsel were present, and the trial judge informed Love that the jury’s verdict had to be unanimous. The trial judge further stated that if Love was found guilty the jury would then decide the punishment after hearing additional evidence and argument. Finally, the trial judge explained that Love could waive the jury trial, and the trial judge would determine guilt or innocence. The trial judge then asked Love if he had any other questions; Love responded, “No.” On appeal, Love submits that the instructions given by the trial judge concerning the sentencing procedure were incomplete and misleading because the trial judge did not inform him that the judge determined whether the sentences were to be served consecutively or concurrently.

With regard to the second point, after the jury returned a guilty verdict on both counts of aggravated robbery, the trial court made the following statement:

Ladies and gentleman you have found Mr. Love guilty of these aggravated robberies. I will tell you now that aggravated robbery when committed by an habitual offender is punishable from 10 years to 40 years or life.

(Emphasis supplied.) On appeal, Love contends that his jury sentence was substantially affected by the trial court’s erroneous identification of him as an habitual offender. Love, however, does not assert that the sentence range of “10 years to 40 years or life” was not the appropriate range for aggravated robbery when committed by a person who was not an habitual offender. In fact, the sentencing range in the instruction was the appropriate range. See Ark. Code Ann. § 5-4-401 (Repl. 1993).

The failure to object at the first opportunity waives any right to raise the point on appeal. Gibson v. State, 316 Ark. 705, 875 S.W.2d 58 (1994); Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). To preserve an argument for appeal there must be an objection in the trial court that is sufficient to apprise that court of the particular error alleged. Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995). Further, we will not address arguments raised for the first time on appeal. Parnell v. State, 323 Ark. 34, 912 S.W.2d 422 (1996); Cooley v. State, 322 Ark. 348, 909 S.W.2d 312 (1995). In this instance, the alleged errors should have been called to the attention of the trial court by timely objection or inquiry so that the trial court could be given the opportunity to correct the errors. See Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993); Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986).

For his final point, Love contends that the trial court abused its discretion by directing that the sentences be served consecutively. The jury recommended that Love’s sentences be served concurrently; however, the trial court ordered that they be served consecutively.

It is well established that the question whether two separate sentences should run consecutively or concurrently lies solely within the province of the trial court. Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986); see also Ark. Code Ann. § 5-4-403 (Repl. 1993); Ark. Code Ann. § 16-90-109 (1987). Further, the appellant assumes a heavy burden of showing that the trial judge failed to give due consideration to the exercise of his discretion in the matter of consecutive sentences. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). In the instant case, Love has failed to establish that the trial court abused its discretion.

Love initially contends that the trial court ignored his request for immediate sentencing and directed that a presentence investigation report be prepared. Love’s counsel, however, informed the trial court that he would not object to a presentence report. We have repeatedly held that a person cannot agree with a ruling by a trial court and then attack it on appeal. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995).

Love next asserts that the trial court abused its discretion because the Jefferson County Circuit Court has a policy of following the jury’s recommendation with regard to sentencing. Love, however, offers no authority regarding the validity or effect of such an alleged policy. Assignments of error, unsupported by convincing argument or authority, will not be considered on appeal unless it is apparent without further research that they are well taken. Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995). Further, the trial court clearly has the authority to order that the sentences be served consecutively. See Ark. Code Ann. § 5-4-403 (Repl. 1993); Ark. Code Ann. § 16-90-109 (1987); see also Hadley v. State, supra; Brown v. State, supra; Abdullah v. State, supra.

Love further contends that the trial court abused its discretion by considering matters that were immaterial to the case. Love submits that the trial court presided over the trial of Love’s accomplice, who was acquitted. Love asserts that the accomplice’s acquittal was “not well received” by the trial court and that the trial court unduly focused the effects of the community’s recent crime problems upon Love. At the sentencing hearing, the trial court stated:

The comment in the pre-sentencing report that makes the most impact on this Court is the fact that during a period of time here in Pine Bluff a series of these offenses of which you were convicted of two, committed one week apart, there were a series of offenses that virtually paralyzed this city.

The trial court also stated that he did not expect that an extended term in prison would rehabilitate Love. In ordering consecutive sentences, the trial court concluded that “[t]he only thing that I know that it might do is send some sort of a message to somebody else out there that might be so inclined to engage in a course of conduct of a criminal nature.” After Love’s counsel objected that Love had only been convicted of two of the offenses, the trial court stated that Love’s two crimes constituted a series and were a sufficient part of the overall whole to make him responsible for his part. The trial judge further stated that he was not sentencing Love for something that he was not tried and convicted of.

Finally, Love submits that it is improper to penalize one defendant to make a law enforcement or political statement. Granted, the trial court commented that he hoped to send a message to people who might be inclined to engage in criminal activity. However, Love cites no authority for his argument that such a consideration is improper. Stevens v. State, supra. Further, Ark. Code Ann. § 16-90-801 (a)(5) (Supp. 1995) provides that a primary purpose of sentencing a person convicted of a crime is to “deter criminal behavior and foster respect for the law.”

Affirmed.

Dudley, J., not participating.


author: PER CURIAM.

text:
    Eddie TAYLOR v. STATE of Arkansas
    CR 96-273
    922 S.W.2d 710
    Supreme Court of Arkansas
    Opinion delivered May 28, 1996

      Pro Se Motion for Extension of Time to File Appellant’s Brief (Crittenden Circuit Court; David Burnett, Judge); motion granted.

      Appellant, pro se.
    No response.
   PER CURIAM.

On July 17, 1995, judgment was entered reflecting that Eddie Taylor had pleaded guilty to possession, manufacture, and delivery of a controlled substance. A sentence of 480 months imprisonment was imposed with suspended imposition of sentence of twenty-five years. Mr. Taylor subsequently filed in the trial court a petition and an amended petition for reduction of sentence pursuant to Ark. Code Ann. § 16-90-111 (b) (1) (Supp. 1995). The petition and amended petition were denied on the merits, and the record has been lodged on appeal.

Mr. Taylor moves to extend the time to file his brief because he is incarcerated and thus has limited access to legal materials. As he filed the motion before the brief was due and has stated good cause for requesting an extension of time, the motion is granted. The time for filing the appellant’s brief is extended to thirty days from the date of this opinion.

We take this opportunity to note that Mr. Taylor’s claim for postconviction relief should have been brought pursuant to Ark. R. Crim. P. 37 rather than § 16-90-111, which we have declared to be in conflict with Rule 37. Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994). Rule 37.2 (b) now provides, in pertinent part, that all grounds for postconviction relief from a sentence imposed by a circuit court must be raised in a petition under Rule 37.

In the Reed case we declined a petition brought pursuant to the statute. The petition in that case met the time constraints of the statute but not those of Rule 37. Mr. Taylor’s petition met the timeliness requirement of Rule 37, and in view of the fact that it was a petition cognizable under Rule 37, it was not wrong for the trial court to have considered it on its merits. We make this observation in the hope that confusion and untimely petitions may be avoided in future cases by referring to the rule rather than the statute.

Motion granted.

Dudley, J., not participating.


author: PER Curiam.

text:
    Dinzel NORMAN v. STATE of Arkansas
    CR 95-361
    922 S.W.2d 711
    Supreme Court of Arkansas
    Opinion delivered May 31, 1996
   PER Curiam.

On May 20, 1996, we issued a per curiam granting appellant Dinzel Norman’s motion to disqualify his attorney, George Stone. In that per curiam, we set out the various earlier orders of this court directing Stone to file the appellate record and brief in Norman’s behalf.

Stone has been ordered on three occasions to file the record and brief in this cause, but he never did so. He has also appeared before this court twice in response to orders directing his appearance to show cause why he should not be held in contempt. On each occasion, Stone was late.

When Stone made his first appearance on February 26, 1996, he pled guilty to contempt, but assured the court he would file his brief on or before March 23, 1996. We held matters in abeyance, giving Stone time to comply with the new briefing date. No brief was filed on March 23. Instead, Stone waited until March 25, 1996 to request more time, stating his license had been suspended for a CLE deficiency. We gave Stone until May 6, 1996, since he said his CLE deficiency would be corrected on or before March 29, 1996.

On or about April 3, 1996, Stone’s suspension of license had been stayed by the CLE Board, but Stone still failed to file Norman’s brief on May 6, 1996.

This court again was required to serve Stone with notice to appear, and while late, he appeared on May 28, 1996. At that hearing, Stone offered no valid reason for failing to meet the court’s briefing schedule and complying with the court’s directives. In sum, his response was that because he disliked his client, Norman, he had difficulty in preparing a brief. He gave no reason for failing to comply with this court’s earlier directives. During this same hearing, Stone stated that he had never been sanctioned by the Professional Conduct Committee in this matter or any other. However, this court’s clerk’s office reflects Stone has been previously reprimanded by letter dated January 30, 1996. That letter was served on Stone by restricted delivery, and he signed upon its receipt. That sanction ensued from Norman’s earlier grievance with the Commission filed in late 1995.

Because Stone has been found in criminal contempt, and he gives no valid reason in mitigation of punishment, we hereby order Stone to be incarcerated for forty-eight hours. Accordingly, we direct him to present himself to the Pulaski County Regional Detention Facility on Friday, June 7, 1996, at 5:00 p.m., where he will be incarcerated for a forty-eight-hour period. If Stone fails to appear, as ordered, the State Police will take immediate custody of Stone and deliver him forthwith to the Pulaski County Detention Facility for a forty-eight-hour period from the time he is delivered to the Facility.

DUDLEY, J., not participating.


author: DAVID Newbern, Justice.

text:
    Heath KENNEDY v. STATE of Arkansas
    CR 95-711
    923 S.W.2d 274
    Supreme Court of Arkansas
    Opinion delivered June 3, 1996

      Didi Sailings, Executive Director, Arkansas Public Defender Commission, by: Elizabeth S. Johnston, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   DAVID Newbern, Justice.

Heath Kennedy stands convicted of capital murder and sentenced to life imprisonment without parole. He argues that the evidence was insufficient to have been permitted to go to the jury, thus his motion for directed verdict should have been granted. He also contends a statement given by him to the police should have been suppressed. We affirm the conviction because the evidence was not only sufficient but overwhelming, and the State has shown that the statement was knowingly and voluntarily given.

Testimony at the trial revealed these undisputed facts. On March 5, 1994, Heath Kennedy, age 18, and Wade Miller, age 16, entered the Subway Sandwich Shop in El Dorado. Mr. Miller produced a .25-caliber pistol and pointed it at the cashier, who was the only employee in the store. The cash register was emptied and the cashier, 21-year-old Leona Cameron, was shot twice in the head. The shooting was done by Mr. Miller who had gone over the counter and taken Ms. Cameron to the storage area in the rear of the store. After killing Ms. Cameron, Mr. Miller called Mr. Kennedy to the rear of the store. He was having trouble getting the video tape out of the video cassette recorder (VCR) which was connected to the store security camera. The two young men left the store with the VCR which they dumped in a “mud hole” at Calion. Although the VCR and the tape it contained had been under water for days, still pictures taken from the tape after enhancement by the FBI clearly showed the young men in the store at 9:52 p.m. on the night of the murder.

1. Sufficiency of the evidence
Arkansas Code Ann. § 5-10-101 (Repl. 1993) provides in part:
(a) A person commits capital murder if:
(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit ... robbery, ... and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; or
***
(4) With the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person;
***
(b) It is an affirmative defense to any prosecution under subdivision (a)(1) of this section for an offense in which the defendant was not the only participant that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission.

As Mr. Kennedy did not do the shooting, his argument is that his responsibility could only be that of an accomplice. Arkansas Code Ann. § 5-2-403(a) (Repl. 1993) provides:

A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person in planning or committing it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

In the statement he gave to the El Dorado police, Mr. Kennedy said he did not know Mr. Miller had the pistol in his possession when they entered the store and that he protested strongly when Mr. Miller pulled it out and pointed it at Ms. Cameron. There is, however, strong evidence that Mr. Kennedy did know the gun would be used and that he helped plan and execute the robbery and murder and thus was an accomplice.

Ricky Church testified he saw Mr. Kennedy give the gun to Wade Miller, and was with Mr. Kennedy when he attempted to purchase ammunition for the gun. Darla Chance, a firearms dealer, stated that Mr. Kennedy purchased a magazine for the pistol several months prior to the murder. She also corroborated the testimony of Mr. Church that Mr. Kennedy attempted to purchase ammunition from her on March 4, 1994, the day before the murder. As he was under 21, he was not allowed to purchase the ammunition.

David Crawford testified that Mr. Kennedy asked him to purchase a box of .25-caliber ammunition. He stated that Mr. Kennedy drove him to Wal-Mart where he bought the shells for Mr. Kennedy the day before the shooting.

John Bennefield testified he saw Mr. Miller and Mr. Kennedy with the pistol on the evening of the murder. He stated that he saw Mr. Miller “wiping down shells with a rag in his lap.” According to Mr. Bennefield, when he asked them what they were going to do he was told, “Don’t worry about it.”

Jason Jackson told the jury he saw Mr. Kennedy and Mr. Miller about 8:00 p.m. on the night of the murder. According to his testimony, they brought up the idea of robbing a store and asked him if he would like to be the getaway driver for them. Mr. Jackson testified they told him they got the idea from the movie, Menace II Society, which, in the opening scene, depicts the robbery of a store, the killing of the cashier, and the removal of the videotape. Mr. Jackson testified the two told him they were going to rob the Subway Sandwich Shop because it would not be very crowded.

Mr. Jackson further testified that he saw Mr. Kennedy the day after the murder and that Mr. Kennedy showed him a newspaper reporting the crime and told him that he and Wade Miller had done it. Mr. Kennedy told him they went to the store but people were there. When they returned about ten minutes later, Wade pulled his gun, and demanded the money. Mr. Jackson stated that Mr. Kennedy said he grabbed the money while Miller took the young woman to the back. Mr. Kennedy told Jason that he heard three shots, then, after the fourth shot, he heard the victim scream, “Oh God.” He then went to the back room and helped get the VCR.

A defendant may properly be found guilty not only of his own conduct, but also the conduct of his accomplice. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). There is no distinction between principals on the one hand and accomplices on-the other, insofar as criminal liability is concerned. Purifoy v. State, supra.

In view of the testimony showing that Mr. Kennedy participated in the planning of the robbery and murder, including his purchase of ammunition for the pistol used by Mr. Miller, his presence at the scene during the commission of the crime, his participation in attempting to dispose of the VCR after the shooting, and his admission to a friend of having committed the crime, we conclude it was not error to allow the jury to consider the evidence against Mr. Kennedy.

2. Involuntary statement

Mr. Kennedy moved to suppress evidence of an inculpatory statement he made to Lt. Carolyn Dykes and Detective James Morrow of the El Dorado Police Department. At a hearing on the motion, the testimony of the officers revealed the following.

Detective Morrow had once been married to an aunt of Mr. Kennedy and had close ties with the Kennedy family until he and the aunt were divorced some five years ago. He had, during the time of that marriage, been Heath Kennedy’s baseball coach as well. On Monday, March 7, 1994, Detective Morrow went with another officer to the Kennedy home to speak to Heath Kennedy about the disappearance of Joe Johnson, about information that Mr. Kennedy had been seen with a gun, and about the Subway store murder. Mr. Kennedy denied knowledge of any of the three.

On March 8, 1994, Detective Morrow called Mr. Kennedy and asked if he could come to the police station to discuss the disappearance of Joe Johnson and bring Wade Miller with him. Mr. Kennedy agreed. Shordy thereafter, Mr. Kennedy’s mother called Detective Morrow to ask what was going on. Detective Morrow told her he was having a group of young people come in to discuss Joe Johnson’s disappearance. He did not mention the Subway robbery and homicide.

Mrs. Kennedy arrived at the police station with Heath and Wade Miller late the afternoon of March 8, 1994. She and Heath were taken to a room by Lt. Dykes. Detective Morrow was present. Lt. Dykes had learned of Detective Morrow’s previous family relationship with the Kennedys and had informed her superior that she would take the lead in the interview. She presented Heath Kennedy a waiver of rights form which stated the interview was to be about the homicide at the Subway store and the missing juvenile, Joe Johnson. The form had a place for the person executing it to state his date of birth. When Heath Kennedy informed Lt. Dykes of his date of birth, indicating that he was 18 years old, Lt. Dykes asked Mrs. Kennedy to leave the room. Mrs. Kennedy objected. She testified Lt. Dykes told her the law required that she leave. Mrs. Kennedy went into the hallway and was then asked to move further away, which she did.

Heath Kennedy admitted that he had a gun and had been with Wade Miller on the night of the murder. He denied knowledge of Joe Johnson’s disappearance and of the Subway robbery and the murder of Ms. Cameron. Lt. Dykes testified she assumed there was no further information to be obtained from him at that time, so she left the room to report that fact to her superior. At that point, Detective Morrow told Mr. Kennedy it would break his parents’ hearts to learn that he was running around with a gun. Shortly thereafter, Mr. Kennedy asked if he could tell Detective Morrow something and have his “name kept out of it.” Morrow replied he could make no promises, but asked, “What’s on your mind?” Heath Kennedy then, according to Detective Morrow, admitted “his complicity or his part in the Subway incident.” Lt. Dykes returned to the room and took a full statement from him in which he gave the details of the robbery, the shooting, and the attempt to dispose of the VCR, but said he did not know Miller had the gun and that he urged him not to use it.

Mr. Kennedy makes no claim that he was in any way coerced into making his statement to the police. His argument is that his statement should have been suppressed because of the “underhanded and deceitful” conduct on the part of a man he knew as “Uncle Jamie” and trusted to treat his statement as confidential. There is a suggestion that, had Mrs. Kennedy not been lied to about the nature of the investigation, she would not have permitted Heath to go to the police station without an attorney. He claims the VCR and the tape it contained as well as the gun recovered from beneath Wade Miller’s grandparents’ front porch should have been suppressed as fruit of the poisonous tree.

The State has the burden of proving by a preponderance of the evidence that a custodial confession or inculpatory statement was given voluntarily, and was knowingly and intelligently made. Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995). Consideration of the validity of a criminal defendant’s waiver of the right to remain silent and the right to counsel prior to giving an inculpatory statement may be divided into two components. Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994). The first component is the voluntariness of the waiver, and it concerns whether the accused has made a free choice, uncoerced by the police, to waive his rights. The second component involves whether the defendant made the waiver knowingly and intelligendy, and the inquiry then focuses on determining if the waiver was made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Id. We must also decide if the confession or inculpatory statement, given after a waiver of rights has occurred, was itself voluntarily made.

When reviewing the voluntariness of confessions, we make an independent determination based on the totality of the circumstances and reverse the trial court only if its decision was clearly erroneous. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995); Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995). In determining whether a confession was voluntary, the Court considers the following factors: age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, repeated and prolonged nature of questioning, or the use of physical punishment. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985); Barnes v. State, 281 Ark. 489, 665 S.W.2d 263 (1984). Two other pertinent factors in considering the totality of the circumstances are the statements made by the interrogating officer and the vulnerability of the defendant. Oliver v. State, supra; Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987).

As Mr. Kennedy does not claim that the officers threatened him or induced him with promises of leniency, or that there was an unduly long or otherwise oppressive interrogation, the voluntariness of the statement hinges on his claim of vulnerability. Mr. Kennedy’s claim of vulnerability is based primarily on his youth, his relationship of trust with Detective Morrow, and the fact that he and his mother were misled initially as to the scope of the interview in which he ultimately inculpated himself.

Although youth is a factor, it alone is not a sufficient reason to exclude a confession. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996); Oliver v. State, supra. Mr. Kennedy was over eighteen years of age, thus his mother’s consent was not required for a waiver of his right to counsel. Ark. Code Ann. § 9-27-317 (Repl. 1993).

The only authority cited by Mr. Kennedy in support of his argument on this point consists of Free v. State, supra, and Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). Those cases recite the general law on voluntariness but do not help with the facts of this case. Wong Sun v. United States, 371 U.S. 471 (1963), is cited for the “fruit of the poisonous tree” doctrine regarding the VCR and the gun.

For the proposition that the police “may make misrepresentations of fact so long as the officer does not coerce the suspect and does not make promises of leniency, so long as the suspect’s in-custodial statement is otherwise freely and voluntarily made, with the suspect having been previously informed of his so-called Miranda rights,” the State cites Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied 440 U.S. 911 (1979), and Tucker v. State, 261 Ark. 505, 549 S.W.2d 285 (1977).

In the Gardner case, we held there was no error in admitting evidence of an inculpatory statement when there was a factual dispute of whether the defendant and his father had been misled by police officers about whether the statement could be withdrawn if he later obtained an attorney. Here we have no factual dispute about whether Mrs. Kennedy and Heath Kennedy were misled or the degree to which they were misled.

More relevant is the Tucker case, in which there was evidence that a police officer had led the 16-year-old defendant to believe physical evidence that he had killed his mother was stronger than it was. The officer went so far as to refer to the misleading as a “ruse” and a “con.” There was also evidence that the officer had become a “dutch uncle” to the defendant. In our opinion holding these facts did not make the statement involuntary we cited Frazier v. Cupp, 394 U.S. 731 (1969). There the Supreme Court dealt with a case in which a defendant was falsely told by an interrogator that another had confessed that he and the defendant had committed a crime. The interrogator further misled the defendant when the defendant suggested he might get in more trouble if he said more without a lawyer’s guidance. The interrogator misled him by saying that he could not be in any more trouble than he was already. The Supreme Court held the misrepresentation about the confession was relevant but not sufficient to make an otherwise voluntary confession inadmissible.

In this case, there is no question Mr. Kennedy was of age and waived his rights after being informed the investigation was about not only the disappearance of Joe Johnson but the homicide of Ms. Cameron as well. Although Mr. Kennedy was described at one point as mildly retarded in connection with an academic evaluation, he was in the eleventh grade and could read and write.

There is no suggestion that Mr. Kennedy did not understand his situation. There were no threats of violence or promises of leniency. He had been asked about possession of a pistol on the day before he went in for questioning; thus, he shouldn’t have been too surprised when that topic arose. He was questioned for less than two hours. There is no suggestion that he asked to be represented by an attorney. His inculpatory statement was made at his own instance after it appeared that his interview at the police station would end with his denials. Given these circumstances, we cannot say the statement was involuntary.

The totality of the circumstances surrounding the taking of the confession in this case is such that we cannot say the Trial Court erred in admitting evidence of the statement. The Trial Court was entitled to rely on the testimony of Detective Morrow that the statement was volunteered without prompting. Everett v. State, 316 Ark. 213, 871 S.W.2d 568 (1994).

3. Rule 4-3 (h)

In accordance with Arkansas Supreme Court Rule 4-3 (h), the record of trial has been examined for rulings adverse to the defendant on objections, motions, and requests by either party, and we find no reversible error.

Affirmed.

DUDLEY, J., not participating.


author: TOM GLAZE, Justice.

text:
    Ilene KINGSBURY v. R. Maxine ROBERTSON
    95-435
    923 S.W.2d 273
    Supreme Court of Arkansas
    Opinion delivered June 3, 1996

      Donald R. Roberts, for appellant.

      Sam L. Anderson, Sr., for appellee.
   TOM GLAZE, Justice.

Appellant llene Kingsbury is the niece and heir of Claude Rogers, who died on October 16, 1989. Rogers, a widower with no children, had engaged appellee Maxine Robertson to be his caretaker-nurse and gave her power of attorney on February 15, 1989. There was evidence that Robertson was representing herself to be Rogers’s wife at the time of his death, although the two had never married. On November 12, 1993, Kingsbury sued Robertson, alleging breach of fiduciary duty and intentional infliction of emotional distress. Specifically, the complaint stated that Robertson: (1) concealed assets of Rogers’s estate; (2) attempted to probate the estate using a fraudulent will; (3) misrepresented herself to be Rogers’s wife, “causing acts to be done which would not have been but for the misrepresentation”; (4) concealed Rogers’s death from the next of kin; (5) ordered the cremation of his body without Kingsbury’s knowledge; and (6) attempted to convert the assets of Rogers’s estate after his death using a power of attorney.

Robertson moved to dismiss on the basis that the suit was barred by the three-year statute of limitations that applies to tort actions. Ark. Code Ann. § 16-56-105 (1987). She asserted that any cause of action would have accrued on October 16, 1989, the date of Rogers’s death. Kingsbury argued in response that these acts had been ongoing until March of 1990, and she attached various documents reflecting these acts and their dates of occurrence.

The trial court treated the motion to dismiss as a motion for summary judgment. It found that all of the alleged breaches of fiduciary duty took place more than three years prior to the filing of Kingsbury’s suit and Kingsbury was aware of these acts. Further, the trial court concluded that the allegations regarding concealment of Rogers’s death and cremation were the only claims that would give rise to a suit for outrage, and as Rogers had died more than three years prior to the filing of this action, the statute of limitations barred such claims.

Kingsbury contends that the trial court erred in finding her claims for breach of fiduciary duty and the tort of outrage were barred by the statute of limitations. However, we are unable to reach the merits of Kingsbury’s appeal because her abstract is flagrandy deficient. Ark. Sup. Ct. R. 4-2 (b)(2).

Kingsbury’s argument to this court concerns the applicability of the statute of limitations to the specific allegations in her complaint, but the abstract of her complaint fails to reflect those specific allegations. Instead, the complaint, as abstracted, simply states that Kingsbury sought compensatory damages for breach of fiduciary duty and compensatory and punitive damages for outrage. We have repeatedly held that a proper summary of the pleadings upon which the case was brought is essential for the court to consider the case. Bohannon v. Arkansas State Bd. of Nursing, 320 Ark. 169, 895 S.W.2d 923 (1995); Logan County v. Tritt, 302 Ark. 81, 787 S.W.2d 239 (1990).

Kingsbury also significantly failed to abstract exhibits that are essential to the determination of this appeal. Her argument to the trial court was that breaches of fiduciary duty had been ongoing since the date of Rogers’s death and not before. In her response to Robertson’s motion to dismiss, Kingsbury attached the following documents and orders in support of her contention that the statute of limitations had been tolled and was therefore inapplicable: (1) an authorization to cremate dated October 16, 1989; (2) a funeral home information sheet dated October 17, 1989, upon which Robertson stated she was Rogers’s wife; (3) Rogers’s obituary dated October 17, 1989, reflecting that Robertson was his wife; (4) an order from the probate court dated December 22, 1989, requiring Robertson to turn over assets of his estate; (5) a letter from Robertson’s lawyer dated February 28, 1990, stating that the assets had been turned over; (6) a joint will of Robertson and Rogers, along with a February 26, 1990 opinion of a handwriting expert stating that Robertson had signed Rogers’s name to it; (7) an April 30, 1990 order of the probate court dismissing Kingsbury’s petition to probate the will; (8) an order dated May 8, 1991, requiring Robertson to release assets of decedent; and (8) Rogers’s medical records with a notation dated March 10, 1990, wherein Robertson, representing herself as Rogers’s wife, had requested that no medical information be given to Kingsbury.

Under Ark. Sup. Ct. R. 4-2(a)(6), exhibits necessary for a clear understanding of a case must be included in an abstract. Id.; see also Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). When such exhibits are not included in the abstract, we will summarily affirm. Pennington v. City of Sherwood, 304 Ark. 362, 802 S.W.2d 456 (1991). We have repeatedly stated thát it is impractical to require all seven members of this court to examine one transcript in order to decide an issue. Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986). The burden on an appellant to reproduce exhibits is slight, but the ability of seven justices to understand the issues presented is essential. See George Rose Smith, Arkansas Appellate Reports: Abstracting the Record, 31 Ark. L. Rev. 359, 365 (1977). Here, Kingsbury’s complaint and exhibits to her responsive pleading presented the core of her argument that the limitations statute did not bar her claims. Without those items being abstracted for the court’s consideration, her argument must fail. Therefore, because Kingsbury’s abstract is inadequate for a resolution of the issues presented, we summarily affirm the decision of the trial court.

Dudley, J., not participating.


author: Tom Glaze, Justice.

text:
    Jack WELLS and Reba Wells v. The ESTATE of Reba A. WELLS
    95-1299
    922 S.W.2d 715
    Supreme Court of Arkansas
    Opinion delivered June 3, 1996

      Michael J Medlock, for appellants.

      Paul R. Post, for appellee.
   Tom Glaze, Justice.

This litigation arose after Reba A. Wells died on May 13, 1994. Five days later, Ms. Wells’s stepson, Jack Wells, filed a petition in probate court, submitting an untided instrument dated May 6, 1994, as Ms. Wells’s last will, and requesting he be appointed executor. On May 19, 1994, Michie Daniels, Ms. Wells’s niece, petitioned the probate court, offering an instrument dated July 8, 1993, entitled the Last Will and Testament of Reba A. Wells. After a hearing, the trial judge declined to probate the instrument proffered by Jack Wells, holding the instrument was not a will, nor properly executed as such. The judge concluded (1) the instrument failed to reflect it was a will, (2) it was not executed as a will under Ark. Code Ann. § 28-25-103 (1987), and (3) the decedent, Ms. Wells, never declared before a witness that the instrument was a will. Furthermore, the judge held the proof of will accompanying the instrument submitted by Jack Wells was not supported by the evidence. Finally, he found that, when she executed the May 6, 1994 instrument and other related documents, Reba A. Wells was under duress and undue influence. The probate judge admitted to probate the Reba A. Wells will dated July 8, 1993, finding it properly executed and valid.

In this appeal, Jack Wells challenges all of the probate judge’s findings in holding the May 6, 1994 instrument to be invalid. He argues that, while Reba A. Wells may not have declared to the witnesses that the May 6, 1994 instrument was her will, such a declaration was not required. See Faith, 286 Ark. 403, 692 S.W.2d 239 (1985) (court stated it is not required that a testator recite precisely the words “this is my will,” although that is obviously the preferred practice). Nor, he argues further, was it impermissible for one of the two witnesses to be the notary who subscribed the instrument and accompanying proof of will. Wells relies on the principle that, where there is no indication of fraud, deception, undue influence, or imposition, this court avoids strict technical construction of statutory requirements in order to give effect to the testator’s wishes. Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239. In sum, Wells argues that the facts of this case do not call for the strict application of § 28-25-103 and its requirement for the proper execution of a will; therefore, the trial judge erred in refusing to probate the May 6, 1994 instrument as Reba Wells’s last will. We cannot agree.

We first point out that probate cases are reviewed de novo on appeal, and this court will not reverse unless the findings of the probate judge are clearly erroneous. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992). Due deference will be given to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Id. In the typical will contest, the party contesting the validity of the will has the burden of proving by a preponderance of the evidence that the testator lacked mental capacity at the time the will was executed or that the testator acted under undue influence. Id. The probate judge here found the evidence showed clearly that Reba A. Wells was under duress and undue influence when she executed the May 6, 1994 instrument and therefore the instrument should not be found to be Reba’s will.

Jack Wells argues that the probate judge erred because there was no credible evidence of malign influence on his and his family’s part. He points to the evidence he presented at the hearing that he and his wife took care of Reba after her husband died, and he was named on Reba’s checking account. Jack’s wife testified that Reba spent holidays with their family and pictures were introduced of these family events. His wife also related that it was Reba, not Jack Wells, who requested the May 6 instrument be prepared. Dr. David Staggs also testified that, in his view, Reba was capable of managing and handling her business affairs.

Other strong evidence conflicted with that presented by Jack Wells. For instance, Reba’s niece, Doris Lundeen, testified that Jack Wells did not contact any of the nieces for three days after Reba was hospitalized for her heart attack in March 1994; and Jack had asked Reba’s sister not to call. Niece Michie Daniels said that Jack Wells told her and others that they could not see Reba because of doctor’s orders, but hospital personnel allowed them to do so. Franklin Wilder, Reba’s attorney, said that Reba called him, saying she had been a prisoner .held by Jack Wells, that Jack Wells and others made her sign a bunch of papers, and that she did not know what she had signed. Wilder testified Reba had said that they were trying to get her house and that she wanted her niece to come rescue her. Another niece of Reba’s, Barbara Barnes, testified that Reba said Jack and his wife had mistreated her, and she was afraid of him. Barnes quoted Reba as saying that Jack and his family were holding her prisoner and that Jack had taken her someplace to sign something; she did not know what it was, but was afraid she signed her house away. A neighbor also testified confirming Jack had been mean to Reba after they had gotten what they wanted from her.

Although there was considerable other testimony introduced below, the foregoing testimony shows that, whether Reba was under duress and undue influence when she signed the May 6, 1994 instrument the Jack Wells family had prepared, was very much in issue. Based upon the record before us, we cannot say the probate judge was clearly erroneous in finding duress and undue influence and refusing to probate the May 6 instrument as Reba’s last will.

Jack Wells’s other argument is that the probate judge erred in probating the other tided instrument, July 8, 1993 Last Will and Testament of Reba A. Wells, because it had been revoked by an Inter Vivos Trust executed on February 24, 1994, revoking all prior wills. Wells does not otherwise contest the validity and execution of the 1993 will.

First, while not argued, Wells probably has no standing to raise the issue since we find nothing in the record except the May 6, 1994 instrument that purports to give him any interest in the trust or the July 8 will. Nonetheless, his argument is without merit in any event. The revocation of wills is governed by Ark. Code Ann. § 28-25-109 (1987), which provides as follows:

(a) A will or any part thereof is revoked:
(1) By a subsequent will which revokes the prior will or part expressly or by inconsistency; or
(2) By being burned, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.
(b) If, after making a will, the testator is divorced or the marriage of the testator is annulled, all provisions in the will in favor of the testator’s spouse so divorced are revoked. With these exceptions, no will or any part thereof shall be revoked by any change in the circumstances, condition, or marital status of the testator; subject, however, to the provisions of § 28-39-401.
(c) Where there has been a partial revocation, reattestation of the remainder of the will shall not be required.

In construing § 28-25-109, we have uniformly held that the only methods of revoking a will are those enumerated in the statute. In Re Estate of O’Donnell, 304 Ark. 460, 803 S.W.2d 530 (1991); Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99 (1950). Section 28-25-109 does not provide that a prior will can be revoked by a trust instrument, nor is there any evidence that Reba’s July 8, 1993 will was revoked by any method authorized under § 28-25-109.

For the reasons above, we affirm.

Dudley, J., not participating.


author: ROBERT L. Brown, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. ESTATE OF Ruby LEWIS, Deceased
    96-131
    922 S.W.2d 712
    Supreme Court of Arkansas
    Opinion delivered June 3, 1996

      C. Norton Bray, for appellant.

      Paul C. Crumpler, for appellee.
   ROBERT L. Brown, Justice.

This case involves the issue of whether the probate court erred in ruling that the appellant, Arkansas Department of Human Services (DHS), was estopped from recouping Medicaid benefits paid to Ruby Lewis from her Estate. We agree with DHS that the probate court did err in this regard, and we reverse and remand.

Ruby L. Lewis died intestate on December 14, 1994, at the age of 73. She was survived by two daughters and two granddaughters, and her estate at the time of her death was valued at approximately $25,000. A petition to open her estate was filed on Decernber 20, 1994. On February 10, 1995, DHS filed a claim against the Estate for Medicaid benefits paid on Ruby Lewis’s behalf for medication and home health care during her lifetime pursuant to Act 415 of 1993, now codified at Ark. Code Ann. § 20-76-436 (Supp. 1995). Act 415 provides in part that DHS may make a claim against the estate of a deceased recipient of Medicaid benefits for the amount of the benefits paid. The amount claimed by DHS was $9,977.36. The claim was denied by the administratrix of the Estate.

On March 20, 1995, DHS filed an amended claim against the estate for $9,488.01. The amended claim subtracted those charges paid prior to August 13, 1993, which DHS believed to be the effective date of Act 415. The actual effective date of Act 415 of 1993 was August 15, 1993. This claim was also denied by the administratrix.

On May 17, 1995, and August 23, 1995, hearings were held before the probate court on the various claims by DHS. At the first hearing, William Freevern, a program administrator in the medical assistance unit of DHS, testified as to the Medicaid payments made on behalf of Ruby Lewis for medication and home health care since August 15, 1993. Neva Braswell, one of the daughters of the decedent and the administratrix of her estate, also testified that her mother applied for services provided by the Elder Choice Program in 1992. She added that her mother was never informed that DHS would be able to recoup the Medicaid benefits after her death.

On August 23, 1995, the second hearing was held before the probate court to allow further testimony by the Estate. At that hearing, DHS stipulated that Ruby Lewis never received any notice or information from DHS about its ability to recover Medicaid payments from her Estate. This point was corroborated by the testimony of other DHS employees, one of whom added that she was never told by DHS to advise recipients of the change worked in the law by Act 415. Neva Braswell expanded her testimony to say that after her mother was denied Medicaid eligibility in 1992, she hired an attorney and appealed. She was eventually granted eligibility in June of 1993. Braswell testified that her mother had personal insurance that would have paid over 80 percent of her medication bills. She added that Medicaid paid approximately $1,800 for her medication, which it is now seeking to recoup.

On September 26, 1995, the probate court issued a letter opinion which stated in part:

Ruby Lewis as á part of her agreement with DHS was required to inform DHS of any change in her financial circumstance which could then disqualify her from receiving the medicaid benefits. It seems reasonable that the same responsibility could be expected of DHS to inform Ruby Lewis of any changed circumstances which would affect her. The Supreme Court of Arkansas in the Wood case, supra, [Estate of Wood v. Department of Human Services, 319 Ark. 697, 894 S.W.2d 573 (1995)], described the result of Act 415 of 1993 as changing the benefit received from an entitlement or gift to a loan. Surely this important change in the status of the relationship between benefit recipient and provider of the benefit is of such significance that DHS should have concluded that its medicaid recipients should be advised of this change. Such was not done and in fact local DHS employees testified that they were not even aware of the change brought about by Act 415 so that they could in turn advise their clients.
It is the conclusion of this Court that DHS had an obligation to advise its benefit recipients such as Ruby Lewis of the change in nature of the benefits which would occur as a result of Act 415 of 1993. Failing to do so DHS should be and in this case is estopped from then making a claim against this decedent’s estate for such benefits.
The equitable doctrine of estoppel is an affirmative defense and as such should be pled. This is to allow the opposing party to present evidence in opposition. In this case it is hard to imagine evidence DHS might offer since the facts are not in dispute. The pleadings here are deemed amended to conform to the evidence.

A formal order by the probate court was entered on October 3, 1995.

DHS’s sole point on appeal is that the probate court erred in finding that DHS was estopped from asserting its claim against the Estate. There are four elements necessary for a finding of estoppel: (1) the party to be estopped must know the facts; (2) the party to be estopped must intend that the conduct be acted on or must act so that the party asserting the estoppel had a right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the facts; and (4) the party asserting the estoppel must rely on the other’s conduct and be injured by that reliance. Miller v. City of Lake City, 302 Ark. 267, 789 S.W.2d 440 (1990); Foote’s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). In Foote’s Dixie Dandy v. McHenry, supra, this court abandoned the principle that the State can never be estopped by the actions of its agents. We stated in Foote’s Dixie Dandy, however, that “[e]stoppel is not a defense that should be readily available against the state, but neither is it a defense that should never be available.” 270 Ark. at 822, 607 S.W.2d at 325.

Since Foote’s Dixie Dandy v. McHenry, supra, this court and the Arkansas Court of Appeals have only applied the doctrine of estoppel against the State where an affirmative misrepresentation by an agent or agency of the State has transpired. See, e.g., Foote’s Dixie Dandy v. McHenry, supra (state auditor’s misrepresentation that further documentation need not be filed may estop the State from collecting unemployment insurance contributions); Wells v. Everett, 5 Ark. App. 303, 635 S.W.2d 294 (1982) (Employment Security Agency informed recipient that amount disbursed was correct amount and was estopped from collecting the overpayment); Fountain v. Everett, 3 Ark. App. 214, 623 S.W.2d 861 (1981) (misinformation supplied by an Employment Security Agency of a sister state may estop Arkansas’s agency from denying benefits); Rainbolt v. Everett, 3 Ark. App. 48, 621 S.W.2d 877 (1981) (Employment Security Agency informed applicant that she need not seek employment until after she viewed a training film and was estopped from using the delay to deny benefits).

Indeed, in Everett v. Jones, 277 Ark. 162, 639 S.W.2d 739 (1982), this court held that estoppel should not be applied where there was no clear proof of an affirmative misrepresentation by the agency. In Jones, the only evidence that was presented was that the State agency had failed to advise the claimant of the procedure to be followed. This court stated:

Certainly, we do not intend that the Foote’s doctrine be extended to a nebulous and indefinite situation where the agent of the State has not clearly caused the claimant to believe that nothing more is necessary other than to return on the assigned date ____Before the State is estopped from applying this law there must be substantial evidence that the citizen relied upon actions or statements by an agent of the State.

Jones, 277 Ark. at 167, 639 S.W.2d at 742. (Emphasis added.) The specific reference to actions or statements by a State agent underscores the need for some affirmative act as a prerequisite to a judicial finding of estoppel. See also AP&L v. Arkansas Pub. Serv. Comm’n, 275 Ark. 164, 169, 628 S.W.2d 555, 559 (1982), where this court referred to the “necessary reliance upon misleading action by the Commission” for estoppel to pertain.

In the case at hand, there was no affirmative misrepresentation by the State but only silence on the part of DHS of its right to recoup Medicaid benefits after Ruby Lewis’s death. It necessarily follows that under these conditions, there can be no evidence that Ruby Lewis in any way relied on the State’s silence regarding Act 415 to her detriment. For us to conclude otherwise would be to engage in guesswork and rank speculation which we will not do.

We take particular note of the fact that Act 415 does not impose a duty on DHS to inform Medicaid recipients of its right to file claims against their estates for benefits paid; nor do the federal Medicaid statutes or regulations. See, e.g., 42 U.S.C. § 1396 p(b) and 42 C.F.R. § 433.36. In fact, the Federal Regulations only provide that notice to a recipient be given if the agency is placing a lien on the property of that recipient while he or she is in a nursing facility and not reasonably expected to be discharged. 42 C.F.R. § 433.36(d).

In sum, we decline to expand the Foote’s Dixie Dandy doctrine to encompass incidents devoid of affirmative misrepresentation by the State. We further decline to impose a duty on State agencies to inform recipients of state benefits of changes in state programs, such as occurred in Act 415, absent a clear directive by the General Assembly to do so. This case, accordingly, is reversed and remanded for a determination of the precise amount of DHS’s claim.

Reversed and remanded.

Dudley, J., not participating.


author: Per Curiam.

text:
    Keith Cox HILSTROM v. STATE of Arkansas
    CR 96-563
    921 S.W.2d 953
    Supreme Court of Arkansas
    Opinion delivered June 3, 1996

      James O. Cox, for appellant.
    No response.
   Per Curiam.

Appellant, Keith Cox Hilstrom, was convicted on October 9, 1995, of theft of leased personal property and theft by deception. His notice of appeal was filed on November 6, 1995. The deadline for filing the record was May 6, 1996. The record was tendered to the clerk’s office after the time for filing had lapsed.

The appellant, by his attorney, James O. Cox, has filed a motion for rule on the clerk to compel the clerk’s office to accept the record. In his motion, appellant’s attorney states that he relied upon misinformation given his office staff with regard to the filing date.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part but instead implies the court reporter who prepared the transcript provided him with misinformation. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.


text:
    Deloris JACKSON v. STATE of Arkansas
    CR 96-333
    923 S.W.2d 280
    Supreme Court of Arkansas
    Opinion delivered June 3, 1996

      Petitioner, pro se.
    No response.
   Per Curiam.

In 1994, Deloris Jackson was found guilty by a jury of murder in the second degree and sentenced to 240 months’ imprisonment. Ms. Jackson was represented at trial by her retained attorney, J. Sky Tapp, who filed a timely notice of appeal of the judgment. The appeal was not perfected, and petitioner Jackson has now tendered to this court a partial record of the lower court proceedings with a motion for rule on clerk and an affidavit of indigency, asking that the appeal be allowed to proceed. Petitioner contends that the appeal was not perfected because she did not have the money to pay for the transcript.

Rule 16 of the Rules of Appellate Procedure — Criminal provides that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout appeal, unless permitted by the trial court or this court to withdraw. Once the notice of appeal is filed with the circuit clerk, only the appellate court can relieve counsel of the obligation to proceed with the appeal. Sup. Ct. Rule 4-30(1). A convicted defendant can waive her right to appeal by not informing counsel that she desires to appeal, but the timely filing of a notice of appeal in the instant case clearly demonstrates that the petitioner here did not waive her appeal right. Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994). The direct appeal of a conviction is a matter of right, and a criminal defendant cannot be denied her first appeal because counsel has failed to follow mandatory appellate rules. See Reagan v. State, 316 Ark. 511, 872 S.W.2d 369 (1994), citing Evitts v. Lucey, 469 U.S. 387 (1985). To extinguish a defendant’s right to appeal because of an attorney’s failure to follow procedural rules would violate the Sixth Amendment right to effective assistance of counsel. Evitts v. Lucey, supra. See also Pennsylvania v. Finley, 481 U.S. 551 (1987).

Even if there are insufficient funds to pay for the appeal transcript, an attorney cannot abandon the convicted defendant solely because there is no money for an appeal. Parker v. State, 303 Ark. 185, 792 S.W.2d 619 (1990). An attorney, knowing the convicted defendant desires to appeal, is obliged under Rule 16, regardless of the defendant’s financial circumstances, to file the notice of appeal and then file a partial record, consisting of at least the judgment and notice of appeal, in the appellate court with a motion to be relieved containing a statement of the reasons for the request to withdraw. A copy of the motion to be relieved should be mailed to the defendant. See Lewis v. State, 279 Ark. 149, 649 S.W.2d 188 (1983).

Attorney Tapp did not receive permission from the appellate court to be relieved of his obligation to proceed with the appeal in this case and thus remains attorney-of-record. As petitioner Jackson contends that she is now indigent and the State has not contested that assertion, Mr. Tapp is appointed to represent her in this appeal. A writ of certiorari is issued to bring up within ninety days the entire record as designated by Mr. Tapp in the notice of appeal. A copy of this opinion shall be forwarded to the Committee on Professional Conduct.

Motion granted; writ of certiorari issued.

Dudley, J., not participating.


text:
    Frederick JACOBS v. STATE of Arkansas
    CR 95-808
    922 S.W.2d 344
    Supreme Court of Arkansas
    Opinion delivered June 3, 1996

      Haskins Law Firm, by: Steven R. Davis, for appellant.
    No response.
   Per Curiam.

Appellant Frederick Jacobs moves for a belated appeal, which is granted. However, this case involves another appeal where a transcript has been requested of the court reporter of the 10th Judicial Circuit, and she states her tapes, reflecting the trial record, cannot be reproduced. The court reporter, Val Dixon Sims, is apparently no longer employed by the court, but she testified at a January 30, 1996 hearing regarding the state of the record in this cause, and her testimony seems somewhat conflicting. Ms. Sims indicated she had about twenty tapes produced during the appellant’s trial, but those tapes cannot be transcribed because “you can’t hear what’s on them.” She later said, “You can hear on some of the tapes some voices very, very faint.” Then, Ms. Sims said, “I didn’t count them, . . . but you can’t pick out portions of a tape to transcribe and then later try and certify it as fully true and correct. So if you don’t have it all in a trial, you don’t have anything.”

From the testimony given at the January 30 hearing, it does not appear anyone has actually attempted to transcribe any of the tapes, and from Sims’s statements, there are tapes that could or might be transcribed, but all, or portions could not be. We understand a set of the tapes may have been sent to the FBI for enhancement, if possible. However, we would also direct the trial court to order transcription of whatever can be heard on the tapes.

Recently, in another case seemingly comparable to the one here, a partial transcript was made of Ms. Sims’s tapes, even though a suppression hearing and side-bar conference could not be transcribed. See Hood v. State, 324 Ark. 457, 920 S.W.2d 854 (1996). We remanded the Hood case for the purpose of settling the record under Ark. R. App. P. 6(d) and (e), since it seemed feasible that the omitted portions might be reconstructed in view of the transcript that had been provided.

Accordingly, in addition to what the trial court has already ordered done in this matter, we direct that it order a licensed court reporter to transcribe all tapes, and portions thereof, in an attempt to see if a sufficient record can be obtained, so omitted portions can be reconstructed by the court and parties.

Dudley, J., not participating.

       It appears ten tapes were produced from Sims’s steno mask and ten tapes were made on a separate (or backup) tape recorder.


text:
    NATIONAL BANK OF COMMERCE, et al. v. J. Gerald QUIRK, M.D., et al.
    94-575
    922 S.W.2d 717
    Supreme Court of Arkansas
    Opinion delivered June 3, 1996

      Davidson & Associates, PA., by: Bob Davidson; and Bernard Whetstone, PA., by: Bernard Whetstone, for appellants.

      Friday, Eldredge & Clark, by: J. Phillip Malcom, for appellees.
   Per Curiam.

Appellants, National Bank of Commerce, et al., have filed a “motion to amend mandate” and request additional costs on appeal. In the mandate issued April 5, 1996, costs on appeal were awarded as follows: Appellants’ Brief $500.00; Record $2,442.75; Filing Fee $100.00. The appellants submit that the total cost for preparing the record was $26,009.98; therefore, the appellants contend that they are entitled to an additional $23,567.23 for the cost of producing the record.

Arkansas Supreme Court Rule 6-7, Taxation of Costs, provides in part:

(b) Reversal. The appellant may recover brief costs not to exceed $3.00 per page; total costs not to exceed $500.00, the filing fee of $100.00 and the certified costs of the transcript.
(c) Affirmed in Part and Reversed in Part — Law. In cases at law, the appellant is entitled to the appeal costs if a reversal is ordered, and a substantial recovery is made.

In the instant case, we affirmed in part and reversed in part the decision of the trial court. Because of the partial reversal, we award the appellants one-half of the amount of the requested costs for the record. See In Re Marriage of Swanson, 904 S.W.2d 88 (Mo. App. S.D. 1995); Steffens v. Paramount Properties, Inc., 667 S.W.2d 725 (Mo. App. E.D. 1984); see also 5 Am. Jur. 2d, Appellate Review § 935 (1995). Consequently, we amend the mandate to award costs on appeal as follows: Appellants’ Brief $500.00; Record $13,004.99; Filing Fee $100.00.

Dudley, Glaze, and Brown, JJ., not participating.

Special Justices JAMES McLARTY and W. KELVIN WYRICK would award the entire amount requested by the appellants.


text:
    Larry RAYFORD v. STATE of Arkansas
    CR 96-428
    921 S.W.2d 954
    Supreme Court of Arkansas
    Opinion delivered June 3, 1996

      John F. Gibson, Jr., for appellant.
    No response.
   PER CURIAM.

The appellant, Larry Rayford, has filed a motion for rule on the clerk. This is his second motion. The first motion was denied in our per curiam opinion dated May 6, 1996. In the per curiam, we ordered the appellant’s attorney, John F. Gibson, Jr., to file an affidavit accepting full responsibility for not timely filing the transcript. Mr. Gibson filed the affidavit on May 16, 1996.

We find that such an admission of error, made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Dudley, J., not participating.


text:
    Kenny SMITH v. STATE
    CR 96-573
    921 S.W.2d 953
    Supreme Court of Arkansas
    Opinion delivered June 3, 1996

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

Appellant, Kenny Smith, by his attorney, Michael L. Allison, has filed a motion for a rule on the clerk. We treat this as a motion for belated appeal. Mr. Allison states by motion that the record was refused by the clerk because the notice of appeal was filed prior to the date the posttrial motion was deemed denied. Mr. Allison admits the notice of appeal was filed untimely due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is therefore granted.

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

Dudley, J., not participating.