text:
    Jerry M. WHITE, Kevin Hamilton, Jay McCuien, and Q.D. Whitaker v. Ronnie J. BREWER
    88-7
    750 S.W.2d 956
    Supreme Court of Arkansas
    Opinion delivered June 6, 1988

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., for appellant.

      Howell, Price, Trice, Basham & Hope, P.A., for appellee Ronnie J. Brewer.

      Walter A. Murray Law Firm, for intervenor Rockwood Insurance Company.
   John I. Purtle, Justice.

This is an appeal from judgments on two jury verdicts in the circuit court. The appellants’ sole argument on appeal is that the trial court erred in instructing the jury in accordance with the bracketed second paragraph of AMI Civil 2d, 901(B). We hold that the trial court did not err in giving the instruction.

The occurrence in question took place near Alcoa Road and North Shore Drive in Saline County. Ronnie J. Brewer, Edgar Burnell and the appellant, Jerry White, were each driving a fifteen-ton truck loaded with asphalt mix. W.L. Tumbleson was the legal owner of the truck that Brewer was driving, and the vehicle driven by White was owned by the other appellants.

Brewer was traveling south on a two-lane highway and met Burnell, who was northbound. The two drivers met at a point on the highway about 330 feet south of the crest of a hill. White, who was southbound, crested the hill and saw the two vehicles side by side, blocking both lanes of travel. The shoulders of the road, at that point, were not wide enough to accommodate a vehicle. White did not stop his truck and collided with the back of the vehicle driven by Brewer. The truck driven by Burnell was not damaged by the collision.

Brewer received personal injuries and the vehicle he was driving was severely damaged. Brewer and Tumbleson filed suit and upon trial the jury returned verdicts of $4,600.84 in favor of Brewer and $4,842.70 in favor of Tumbleson. At the close of the trial the court, over the timely objection of appellants, instructed the jury pursuant to AMI 901(B). The instruction included the bracketed portion of the second paragraph, except for the words in parentheses inside the bracketed portion of the instruction. This instruction is the basis of this appeal.

Burnell testified at the trial that when he and Brewer met on the highway they stopped to talk about the location of the construction site where the asphalt was to be delivered. He testified that: “I was occupying the northbound lane. The other driver [Brewer] was occupying the southbound lane. We were stopped. He had been talking. A third dump truck came over the hill.” He identified the third truck as the one driven by White.

Appellant White stated: “Coming down the hill I probably was going a little faster than 35. . . . I came over the hill I saw two trucks down there. I didn’t hit my brakes right off because I thought they were going to move. . . . They weren’t rolling.”

Although the above testimony was not undisputed it is sufficient to show that the instruction was proper under the facts of this case. There was other testimony both in accordance with, and contrary to, the testimony set out above.

The investigating officer, Larry Davis, testified that the point of impact was approximately 400 feet from the crest of the hill. He stated on cross examination that the distance included 72 feet of travel after impact. Several other witnesses testified that the distance from the crest of the hill to the point of impact was about the distance of a standard city block. It is undisputed that there was no warning signal other than the vehicles stopped side by side, and that the vision of Jerry White was not obscured by other objects.

The court instructed the jury pursuant to AMI Civil 2d, 901(B) which reads:

B. [Second] It is the duty of the driver of a motor vehicle to keep his vehicle under control. The control required is that which a reasonably careful driver would maintain under circumstances similar to those shown by the evidence in this case.
[When the driver sees danger ahead, or it is reasonably apparent if he is keeping a proper lookout (or if he is warned of approaching imminent danger) then he is required to use ordinary care to have his vehicle under such control as to be able to check its speed or stop it, if necessary, to avoid damage to himself or others.]

However, only the words in the brackets are in dispute. That part of the bracketed sentence in parentheses was not given in the present case because there was no evidence that there was any warning of imminent danger (aside from the stopped vehicles). It is undisputed that White saw the vehicles blocking the road when he was about 400 feet away. Obviously he could have observed the vehicles when his line of direct vision was no longer obscured by the crest of the hill. The exact distance is not important because he took no immediate steps to stop his vehicle. White stated that he thought the vehicles would move out of the way. By the time it occurred to him that the vehicles were not going to move, he was unable to stop his vehicle before striking the truck driven by Brewer.

The comment by the AMI Committee in the Arkansas Model Jury Instructions is apparently interpreted by the appellants to require warning signs or signals to be present before the bracketed second paragraph may be given. This interpretation is proper only as to that part of the second paragraph which is enclosed in parentheses. However, it obviously does not apply to the entire second paragraph because it commences with the words: “When the driver sees danger ahead, . . . .” Common sense indicates that “seeing” danger is more obvious than seeing a “warning” of what you are about to see.

Appellants’ reliance on Rogers v. Kelly, 284 Ark. 50, 679 S.W.2d 184 (1984), is misplaced. In Rogers this court held that it was proper to refuse to give the bracketed words of AMI Civil 2d, 901(B) because the driver could have seen the pedestrian, whom he later struck with his vehicle, while the pedestrian was “standing stock-still inside a line of cars and looking in both directions before deciding to continue across Main Street.” The pedestrian was seen by the driver of the car while “standing in a position of apparent safety . . . .”

In East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986), we upheld the trial court’s instruction to the jury which included the bracketed section of 901 (B). In the Freeman case several vehicles collided in a patch of dense smoke along an interstate highway. Justification for giving the bracketed portion, including the words in parentheses, was based upon a driver being able to see the smoke some distance before entering the smoke, where the collision occurred.

However, in Home Insurance Co. v. Harwell, 263 Ark. 884, 568 S.W.2d 17 (1978), we upheld the trial court’s refusal to instruct the jury in accordance with the bracketed portion of AMI 901(B). Harwell testified that the other driver involved in the accident backed across the highway in front of her without any signal or warning. The facts in Harwell were not in material dispute. The other driver did the unexpected act of backing into the path of Harwell’s car without warning or signal. She did not see him until it was too late to avoid the collision.

A case factually similar to the present case is Reed v. McGibboney, 243 Ark. 789, 422 S.W.2d 115 (1967). In Need the driver of an automobile crested a hill and observed a vehicle in front of him which had stopped to make a left turn. Two cars had stopped behind the car which was waiting to turn left, and a third car pulled to the right shoulder to avoid striking the stopped vehicles. Reed, unable to stop, veered to his left and collided with a vehicle coming from the opposite direction. The trial judge instructed the jury pursuant to the bracketed portion of AMI 901(B), except for the words in parentheses. On appeal Reed argued that the words in parentheses should have been included in the instruction by the trial judge. We upheld the trial court’s refusal to include the words in parentheses as part of the instruction to the jury.

The appellant also relies upon Coca-Cola Bottling Co. of Blytheville v. Dowd, 189 Ark. 986, 76 S.W.2d 87 (1934). In this case the driver of the Coca-Cola Bottling Company truck pulled onto the highway as another vehicle approached. The driver of the other vehicle collided with the truck and lost control of her car. The basis of the instruction by the trial court in this case was a “sudden emergency” rather than a warning of approaching imminent danger. See AMI Civil 2d, 614.

The appellant also refers to Craighead v. Missouri Pac. Transp. Co., 195 F.2d 652 (8th Cir. 1963). Craighead was decided prior to the adoption of AMI, but factually supports the trial court’s including the words which later became the bracketed portion of 901(B). Craighead, which cited Dowd with approval, approved the giving of an instruction similar to 901(B), including the second paragraph.

No two cases are factually identical. Each must be considered upon its own facts when determining whether the second paragraph of the instruction should be given. In the present case White obviously saw the dangerous situation as soon as he could see over the hill. The facts in the present case clearly warranted the trial court instructing the jury in accordance with the second paragraph of AMI Civil 2d, 901(B).

Affirmed.

Glaze, J., not participating.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Walter H. LANE, M.D. v. Maxine Payton LANE
    87-293
    752 S.W.2d 25
    Supreme Court of Arkansas
    Opinion delivered June 6, 1988

      Tatum & Sullivan, P.A., by: Tom Tatum, for appellant.

      Peel, Eddy & Gibbons, by: Richard L. Peel, for appellee.
   Steele Hays, Justice.

In this medical malpractice case the only question on appeal pertains to the statute of limitations.

Appellant, Walter Lane, a physician, began treating Maxine Lane, appellee, for migraine headaches in 1966 and continued treating her until 1984. The two were married in 1974 and divorced in 1985. Mrs. Lane sued Dr. Lane in May, 1985 for malpractice for injuries received as a result of his treatment. Prior to trial, Dr. Lane moved for summary judgment claiming the action was barred by the statute of limitations. The motion was denied. At the close of the evidence, Dr. Lane moved for a directed verdict and asked the court to reconsider summary judgment based on the statute of limitations. The court denied both motions and a jury awarded Mrs. Lane $44,000.

After the verdict, Dr. Lane moved for judgment NOV, seeking a reduction to $13,000 to conform with the evidence of damages by Mrs. Lane. Mrs. Lane objected to a remittitur and elected to have a new trial. By this appeal Dr. Lane challenges the denial of summary judgment and directed verdict on the issue of statute of limitations.

Dr. Lane’s treatment of Mrs. Lane’s migraine headaches from 1966 to 1984 included regular injections of narcotics of one type or another. Mrs. Lane alleged the treatment was injurious, causing fibrosis of the shoulder, loss of motion of her arm, extensive scarring of her back, arms, and shoulders, drug addiction, drug dependency, drug abuse, depression and loss of ability to carry on a normal lifestyle.

Our statute of limitations for medical malpractice, Ark. Code Ann. § 16-114-203 (1987) [Ark. Stat. Ann. § 34-2616 (Repl. 1962)] provides that:

(a) All actions for medical injury shall be commenced within two years after the cause of action accrues, (b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time . . .

Ark. Code Ann. § 16-114-201(3) (1987) [Ark. Stat. Ann. § 34-2613(c) (Repl. 1962)] defines “medical injury”:

“Medical injury” or “injury” means any adverse consequence arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

Dr. Lane maintains the evidence shows that Mrs. Lane’s drug addiction and scarring began by 1978 and therefore the action is barred by the statute of limitations. Mrs. Lane counters the argument with the “continuing course of treatment” theory. The trial court ruled against Dr. Lane on this issue, finding that the action fell within the statute of limitations.

The theory of “continuous treatment” is defined:

[I]f the treatment by the doctor is a continuing course and the patient’s illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated — unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive.

1 D. Louisell and H. Williams, Medical Malpractice § 13.08 (1982) (footnotes omitted).

“Continuous treatment” is distinguishable from a “continuing tort.” See Williams v. Edmondson, 257 Ark. 837, 250 S.W.2d 260 (1975); Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976); Treat v. Dreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986). In Owen and Treat, the appellants argued that a single negligent act of a physician, a misdiagnosis for example, was a continuing wrong and the statute of limitations would not begin to run until the error was discovered, on the premise that the effect of the wrong was continuous. We declined to adopt that theory, holding the cause of action to accrue at the time of the wrongful act, reasoning that the proposed theory, a public policy issue, should be addressed by the legislature.

To hold otherwise would mean in effect that we would apply the “discovery of injury rule” to our malpractice statute, which would change the time of the accrual of a cause of action from the time of the act to the date of discovery of the injury. This is contrary to the legislative intent plainly expressed in our statute. The limitation begins to run from the “date of the wrongful act complained of and no other time.” Ark. Code Ann. § 16-114-203 (1987).

In contrast to the so-called continuing tort theory, based on a single negligent act, the continuous treatment doctrine becomes relevant when the medical negligence consists of a series of negligent acts, or a continuing course of improper treatment. The basis for the doctrine is sound.

The so-called “continuous treatment” rule has been defended on the grounds of fairness as well as on the basis of logic. Certainly it would not be equitable to bar a plaintiff, who for example, has been subjected to a series of radiation treatments in which the radiologist negligently and repeatedly administered an overdosage, simply because the plaintiff is unable to identify the one treatment that produced his injury. Indeed, in such a situation no single treatment did cause the harm; rather it was the result of several treatments, a cumulative effect. From the point of view of the physician, it would seem reasonable that if he had made a mistake, a misdiagnosis for example, he is entitled to the opportunity to correct the error before harm ensues. And, as one court has put it, “It would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician.

D. Louisell & H. Williams, supra.

Since 1940, there has been a steady trend toward judicial acceptance of the continuing treatment approach. D. Louisell & H. Williams, supra; and 2 Pegalis and Wachsman, American Law of Medical Malpractice § 6:7 (1981), gives this summary:

This circumstance is usually dealt with in each state by the so-called ‘continuous course of treatment’ doctrine. Generally, the cause of action would accrue at the end of a continuous course of medical treatment for the same or related condition even if the negligent act or omission has long since ended.

Jurisdictions adopting the doctrine include Metzger v. Kalke, 709 P.2d 414 (Wyo. 1985); Skoglun v. Blandkenship, 134 Ill. App. 3d 628, 481 N.E.2d 47 (1985); Vinklarek v. Cane, 691 S.W.2d 108 (Tex. Civ. App. 1985); Sheldon v. Sisters of Mercy Health Corp., 102 Mich. App. 91, 300 N.W.2d 746 (1980); Tamminen v. Aetna Casualty & Surety Co., 109 Wis. 2d 536, 327 N.W.2d 55 (1982); Lynch v. Foster, 376 So. 2d 342 (La. 1979); Farley v. Goode, 219 Va. 969, 252 S.E.2d 594 (1979); Samuelson v. Freeman, 75 Wash. 2d 904, 454 P.2d 406 (1969); Frazor v. Osborne, 57 Term. App. 10, 414 S.W.2d 118 (1966); Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966); Borgia v. City of New York, 12 N.Y.2d 151, 187 N.E.2d 777, 237 N.Y.S.2d 319 (1962); Hundley v. St. Francis Hospital, 161 Cal. App. 2d 800, 327 P.2d 131 (1958); Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760 (1943); Hotelling v. Walther, 169 Or. 559, 130 P.2d 944 (1942); Williams v.Elias, 140 Neb. 656, 1 N.W.2d 121 (1941); Schmit v. Esser, 183 Minn. 354, 236 N.W. 622 (1931).

Even a jurisdiction which has adhered to the “time of injury rule” for the accrual of a cause of action for medical malpractice, has recognized this theory. Thus, in Farley v. Goode, supra, the Virginia court found the continuous treatment rule applicable in that instance, recognizing that the treatment should be looked at in its entirety and that within the context of the limitation problem the cause of action was “coextensive with the tortious conduct and that the whole transaction was inherently negligent.” Given the rationale behind the rule, and its growing acceptance, we believe its application in appropriate circumstances is proper. Here, there is no question that Mrs. Lane’s cause of action falls within this doctrine, nor does Dr. Lane dispute this point. In fact, Dr. Lane tacitly concedes the treatment was improper. The treatment, which began in 1966, was terminated in July 1984 and the action was brought in May, 1985, well within the statute of limitations.

Dr. Lane contends however that Mrs. Lane’s addiction was evident in 1978 and that she was aware of the scarring in 1979. It is not enough, however, that Mrs. Lane was aware of an injury. Dr. Lane must show that she knew or should have known there was a wrong. The injury may be readily apparent but the fact of the wrong may lay hidden until after the prescribed time has passed. Lopez v. Sawyer, 62 N.J. 267, 300 A.2d 563 (1973). “In many cases [the plaintiff] will or should know at the time of or soon after the wrongful act that he has been the victim of negligent medical care; in other settings of fact it may be impossible for him, as a layman, unskilled in medicine, reasonably to understand or appreciate that actionable harm has been done him.” Waldman v. Rohrbaugh, supra. To this same effect, see generally, 61 Am. Jur. 2d, Physicians § 321 (1981).

Linder the facts in this case, we cannot say the trial court was wrong. Initially we note that Dr. Lane has incorrectly characterized the evidence as to Mrs. Lane’s addiction. There was no testimony that at some given point, she became addicted. In fact, the testimony cited by Dr. Lane underscores the difficulty of determining at what point Mrs. Lane became addicted. In any case, the witnesses could only say that after some point in time, about 1979, that appellee was in fact addicted. There is no evidence Mrs. Lane knew her condition was attributable to malpractice. And while it might be argued that she must have realized she was drug-dependent, we cannot say she knew the cause of her condition in a legal sense. Absent any testimony, expert or otherwise, on Mrs. Lane’s knowledge of her addiction or its cause, particularly where her dependency occurred at the hands of a physician and was perpetuated by his treatment, we cannot say she knew, or should have known, the treatment constituted medical malpractice. Furthermore, we are not inclined to hold that a physician, aware of a patient’s drug dependency, may nurture the habit and continue to be the provider over a period of years and then successfully contend the patient should have brought the action earlier.

Similarly, while Mrs. Lane was aware of the scarring in 1979, there was no evidence she knew at the time it was due to negligence by Dr. Lane, nor anything to suggest she should have known it was other than a necessary consequence of the treatment she was receiving for her migraine headaches.

The trial court was correct in refusing to find the statute of limitations was a bar to the action in this case.

Affirmed.

Hickman, J., dissents.

       “Although the word ‘discovery’ is used in these cases, the principle differs from that of the true discovery doctrine. This type of discovery operates to the disadvantage of the plaintiff since it shortens the time allowable for him to sue, whereas the typical discovery rule operates to the disadvantage of the defendant, since it lengthens the time for plaintiff to sue.” 1 D. Louisell and H. Williams, Medical Malpractice § 13.08 n. 89 at 13-36 (1982).

       The discovery rule finds that the cause of action accrues at the time the wrong was or should have been discovered, rather than at the time of the wrongful act. See, 1 D. Louisell and H. Williams, Medical Malpractice § 13.08 (1982).

       The evidence showed that Dr. Lane was aware of Mrs. Lane’s dependency, prior to 1980, that in 1984 Dr. Lane did refuse to continue Mrs. Lane’s treatment, and it was shortly after that that she sought outside help for drug-related problems.


author: David Newbern, Justice.

text:
    George R. KENNEDY, Jr., d/b/a Kennedy Well Works v. Butch KELLY
    87-364
    751 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered June 6, 1988

      Lonnie Paul Gehring, for appellant.

      Raymond R. Abramson, for appellee.
   David Newbern, Justice.

This is a garnishment case. The appellant, George R. Kennedy, Jr., obtained a judgment against Robert Nash. Kennedy then filed a garnishment proceeding against the appellee, Butch Kelly, to ascertain and obtain any assets of Nash in Kelly’s hands. On February 18,1986, a default judgment was entered against Kelly because he failed to answer the garnishment process in time. Execution of the judgment against Kelly was delayed while the court considered various post trial motions. On July 29,1986, the United States District Court for the Eastern District of Arkansas decided Davis v. Paschall, 640 F. Supp. 198 (E.D. Ark. 1986).

The Davis case was completely separate from this one and involved other facts and other parties. There the federal court decided that, because the Arkansas garnishment law, then codified as Ark. Stat. Ann. §§ 31-501 through 31-524 (Repl. 1962 and Supp. 1985), did not provide for notice to the original debtor of garnishment proceedings to collect his debt, it violated the debtor’s right to due process of law as prescribed by the Fourteenth Amendment. The judgment against Kelly remained unexecuted, and he filed a “motion for declaratory judgment” in the circuit court asking that the Arkansas garnishment law be declared unconstitutional and the proceedings against him declared void, citing the Davis case. The motion was granted.

The parties have argued various procedural points as well as the issue whether the Davis decision should have been applied retrospectively to the facts in this case. We find, however, that the case should be decided on another point argued, that is, whether the Davis decision did away with the entire Arkansas garnishment procedure or only affected cases in which a debtor complained of lack of notice. We reverse the decision of the circuit court because we agree with the appellant’s contention that the federal court’s holding was that the garnishment procedure was unconstitutional solely due to lack of notice to the debtor and that a garnishee has no standing to raise that issue.

1. The Davis decision

The rationale of the district court’s opinion was that a debtor had the right to notice so he could see to it that his property in the hands of another was not being erroneously taken. The primary example used by the court was a taking despite exemption of the property from garnishment under federal law. The portion of the district court’s conclusion relevant to this case was: “Defendant Marjorie Paschall [the clerk who had issued the garnishment process] is enjoined from issuing writs of garnishment which do not comply with the findings and conclusions in this Memorandum and Order, as Ark. Stat. Ann. § 31-501, et seq. (Repl. 1962) is unconstitutional as violative of the Fourteenth Amendment. . .[640 F. Supp. at 203].”

While the district court used the inexact reference “et seq." to a number of statutes as being unconstitutional, the district court’s language preceding the statutory reference shows that the injunction applied only to garnishment proceedings not in compliance with the decision. In other words, the court did not hold unconstitutional the entire Arkansas garnishment scheme. Garnishments giving proper notice to debtors were to be permitted. The district court even entered a subsequent amended consent judgment stating the notice to debtor language necessary to satisfy the Fourteenth Amendment. Davis v. Paschall, No. PBC-85-378 (E. D. Ark., Pine Bluff Div. Sept. 10, 1986).

Before concluding this portion of our opinion, we note that the general assembly corrected the constitutional notice deficiency in the garnishment statutes. Ark. Code Ann. § 16-110-402 (1987).

2. Standing

As the district court concluded that the garnishment procedure was unconstitutional only as it affected the rights of debtors, it was error for the circuit court, on the basis of the district court’s decision, to vacate the default judgment upon the motion of a garnishee. Nash, the debtor, did not raise any question about notice or unconstitutionality. Kelly, the garnishee, had no standing to assert Nash’s right to due process. Constitutional rights, including due process guarantees, are personal and may not be asserted by a third party. Broadrick v. Oklahoma, 413 U.S. 601 (1973); Ford Motor Credit Co. v. Rogers, 285 Ark. 65, 685 S.W.2d 145 (1985). There is a narrow exception to the rule for cases in which the issue would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the outcome that the interest of the party whose constitutional rights were allegedly deprived would be adequately represented. Eisenstadt v. Baird, 405 U.S. 438 (1972); Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981). The exception does not apply here.

We have also recognized that a garnishee may not ordinarily plead a defense which concerns the debtor only, with respect to the validity of the garnishment proceedings or the creditor’s claim against the debtor. See Rhode Island Ins. Co. v. Boatright, 186 Ark. 796, 56 S.W.2d 173 (1933).

Reversed and remanded.


author: David Newbern, Justice. Steele Hays, Justice, Jack Holt, Jr., Chief Justice, Darrell Hickman, Justice, David Newbern, Justice.

text:
    Ronald Bernard WILSON v. STATE of Arkansas
    CR 87-125
    751 S.W.2d 734
    Supreme Court of Arkansas
    Opinion delivered June 6, 1988
    [Supplemental Opinion on Rehearing July 11, 1988.]

      William R. Simpson, Jr., Public Defender; Deborah R. Sailings, Deputy Public Defender; Arthur L. Allen, Deputy Public Defender; and Didi Harrison, Deputy Public Defender, by: William R. Simpson, Jr., Public Defender, and Deborah R. Sailings, of counsel, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Ronald Bernard Wilson, was convicted of nine felony counts including capital felony murder. All of the offenses occurred in a period of a few hours. He was given a variety of sentences in addition to death by lethal injection for the capital felony murder.

A woman was found dead in her home on July 18,1987. Her employer had become concerned when she did not appear at her job, and her mother was notified. The decedent’s mother found her in her bed. According to the medical examiner’s testimony she had died of strangulation. A plastic telephone cord had been tied around her neck, and her hands and feet were bound. The medical examiner found a contusion on her tongue caused by a gag. He testified it would have taken from two to eight minutes for her to die of strangulation. There was evidence she had been raped. In a statement to the police, Wilson admitted going into the home of a woman on the evening of July 17,1987, telling her to go to the bedroom, which he said she did without resistance, tying a plastic cord from her telephone around her neck, taking necklaces, a handgun, and her car and leaving the house.

Wilson also admitted that, in the early morning of July 18, he approached another victim who was outside a car in an apartment house parking lot. He used the handgun he had stolen to force her into the car he had stolen, drove her to another parking lot where he said she engaged in consensual sexual intercourse with him. This second victim testified that she was beaten into unconsciousness or semi-consciousness and came to while Wilson was attempting to effect intercourse with her on the hood of a car. She testified she was left naked in the parking lot and ran to a nearby building where she received help. She later underwent surgery for a blood clot on her brain which seriously threatened her life but from which she recovered.

In this appeal Wilson does not challenge any of the convictions or sentences other than the sentence to death. He contends Ark. Code Ann. § 5-4-604(8) (1987) is unconstitutionally vague and contains no guidelines to channel a jury’s discretion in deciding whether an aggravating circumstance exists because the crime was “especially heinous, atrocious or cruel.” He also argues that even if the statute is upheld, the evidence does not support the jury’s finding that the murder of which he was convicted was “especially heinous, atrocious or cruel.” Finally, he contends the court erred in allowing the prosecutor to argue improperly in the sentencing phase of his trial.

We set aside the death sentence and reduce it to life without parole because we agree the statute is unconstitutional. As modified, the judgment will be affirmed unless, within seventeen days of this decision, the Attorney General of Arkansas moves for a new trial, in which case a new trial will be granted.

1. The statute

In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court held that the death penalty was unconstitutionally exercised in two Georgia cases and one from Texas in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Each Justice wrote an opinion, From the five opinions concurring in the result, it appears that the court’s concern was that the death penalty was being applied arbitrarily because those empowered to impose the sentence had too much discretion, resulting in the wrong kind of selectivity, i.e., selectivity based on factors such as race, sex, and economic status. Thereafter state legislatures enacted statutes which narrowed the sentencing discretion. In 1975, the Arkansas General Assembly enacted laws requiring the jury which convicts one accused of capital murder to hear additional evidence. If the jury unanimously concludes that aggravating circumstances exist beyond a reasonable doubt, that they outweigh mitigating circumstances beyond a reasonable doubt, and that the aggravating circumstances justify a death sentence, then the death sentence shall be imposed. See Ark. Code Ann. §§ 5-4-601 through 5-4-603 (1987 andSupp. 1987). Prior to 1985, seven specific aggravating circumstances which the jury could consider were specified in a statute, now codified as Ark. Code Ann. § 5-4-604(1) through (7) (1987). They are:

5-4-604 Aggravating circumstances.
Aggravating circumstances shall be limited to the following:
(1) The capital murder was committed by a person imprisoned as a result of a felony conviction;
(2) The capital murder was committed by a person unlawfully at liberty after being sentenced to imprisonment as a result of a felony conviction;
(3) The person previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person;
(4) The person in the commission of the capital murder knowingly created a great risk of death to a person other than the victim;
(5) The capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody;
(6) The capital murder was committed for pecuniary gain; or
(7) The capital murder was committed for the purpose of disrupting or hindering the lawful exercise of any government or political function.

In 1985, an eighth aggravating circumstance was added as § 5-4-604(8). It permits the jury to consider whether “[t]he capital murder was committed in an especially heinous, atrocious, or cruel manner.”

The jury in this case found the aggravating circumstances stated in § 5-4-604(3) and (8). Against these, it balanced its finding of mitigating circumstances which were that Wilson committed the murder while his ability to conform his conduct to the law and to appreciate the wrongfulness of his conduct was impaired by mental disease or defect, and he had demonstrated the ability to adjust to penal institutions and contribute to society though incarcerated.

The jury concluded that the aggravating circumstances outweighed the mitigating circumstances and justified a death sentence beyond a reasonable doubt. The question presented is whether, by permitting consideration of whether the murder was “especially heinous, atrocious, or cruel,” and allowing a death sentence to be based upon that determination, the general assembly has taken us back to the way the law was before 1975 and permitted standardless death sentencing.

In Proffitt v. Florida, 428 U.S. 242 (1976), the Supreme Court considered a case in which the same language as appears in our § 5-4-604(8) was used as an aggravating circumstance to justify a death sentence. The Supreme Court was apparently unwilling to say the language of the Florida statute passed constitutional muster. Rather, the court looked to the manner in which the language had been interpreted by the Supreme Court of Florida and said:

That court has recognized that while it is arguable “that all killings are atrocious,. . . [s] till, we believe that the Legislature intended something ‘especially’ heinous, atrocious or cruel when it authorized the death penalty for first degree murder.” As a consequence, the court has indicated that the eighth statutory provision is directed only at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” We cannot say that the provision, as so construed, provides inadequate guidance to those charged with the duty of recommending or imposing sentences in capital cases. [428 U.S. at 255-256, citations omitted]

In Gregg v. Georgia, 428 U.S. 153 (1976), the Supreme Court reached a similar decision with respect to language of a Georgia aggravating circumstance statute, relying not on the language of the statute to give guidance to the sentencer, but upon the gloss to be added by the Georgia courts. The Georgia statute provided as an aggravating circumstance that the murder was “outrageously wanton and vile, horrible and inhuman.” The Supreme Court upheld the imposition of the death sentence, stating that it had no reason to fear that the Georgia Supreme Court would give the words an “open-ended” meaning. However, in Godfrey v. Georgia, 446 U.S. 420 (1980), apparently the Georgia Supreme Court did just that and approved a death sentence upon finding that it was “outrageously wanton and vile, horrible and inhuman” without further explanation, and the Supreme Court reversed. In doing so, the Supreme Court said:

In the case before us, the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was “outrageously or wantonly vile, horrible and inhuman.” There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as “outrageously or wantonly vile, horrible and inhuman.” Such a view may, in fact, have been one to which the members of the jury in this case subscribed. If so, their preconceptions were not dispelled by the trial judge’s sentencing instructions. These gave the jury no guidance concerning the meaning of any of § (b)(7)’s terms. In fact, the jury’s interpretation of § (b)(7) can only be the subject of sheer speculation.
The standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury in this case was in no way cured by the affirmance of those sentences by the Georgia Supreme Court. Under state law that court may not affirm a judgment of death until it has independently assessed the evidence of record and determined that such evidence supports the trial judge’s or jury’s finding of an aggravating circumstance. Ga. Code § 27-2537(c)(2) (1978). [446 U.S. at 428-429]

We could, in the case before us now, adopt language to describe what we may think the general assembly meant when it adopted § 5-4-604(8), and perhaps that would satisfy the Supreme Court that we, like the Florida Supreme Court, will so construe the words, “especially heinous, atrocious, and cruel,” as to make them meaningful to a jury in its deliberation. Perhaps we could dwell on the conscious feelings of the victim of the crime as it was being perpetrated. We might also refer to the common revulsion felt by any person when confronted by the thought of strangulation, which was the method of death in this case. Or, we might look to the perpetrator and consider whether he was engaged in a rampage, as in this case, or only committed the one crime of murder. There are any number of circumstances to which we might refer in determining what “especially heinous, atrocious, or cruel” means. That is part of the problem. If we begin to adjudicate this issue in each case at this level we are likely to wind up displaying the very sort of inconsistency the Constitution requires us to avoid, as did the Oklahoma Court of Criminal Appeals. In Cartwright v. Maynard, 822 F.2d 1477 (10th Cir. 1987), the Oklahoma court’s attempts to give meaning to these same words were reviewed and found woefully various. It was held that there must be some objective standard, otherwise “the meaning that the sentencer attache [s] to this provision ‘can only be the subject of sheer speculation,’ ” [822 F.2d at 1486, quoting Godfrey v. Georgia, supra, at 429].

The words “especially heinous, atrocious or cruel” can mean nearly anything. The jury in this case received no guidance whatever in defining them, and for us to give them meaning now would not only be after the fact of the sentencing in this case, but would constitute raw legislation. Even though the Supreme Court might approve this death sentence on the basis of our showing that we intend to interpret the statutory language so that it will mean something beyond the words used, we are unwilling to supplant the general assembly.

The Supreme Court has transformed the supreme courts of Georgia and Florida into legislative bodies by refusing to approve the broad language of the Georgia and Florida statutes without the limiting words added by case interpretation and simultaneously declining to disapprove the language as too vague or overbroad. The Arkansas constitution provides for three separate branches of government: legislative, executive, and judicial. While we usually have no hesitancy in interpreting the words of plain meaning used by our legislature, we must decline the invitation of the Supreme Court to bald intervention, especially when we have no better idea than the jury in this case could have had as to the meaning of the words used by § 5-4-604(8).

In Rosen, The “Especially Heinous” Aggravating Circumstance in Capital Cases — The Standardless Standard, 64 N.C.L. Rev. 941 (1986), it is reported that of the 37 states approving capital punishment, 24 have an aggravated circumstance provision similar to the one being considered here. Eight states have statutes with the same language as our statute. The author reviews the decisions made pursuant to those provisions and convincingly demonstrates that they provide no guidance whatever to the sentencer, as the cases show that virtually any consideration may fall within such broad language.

Unlike the Mississippi Supreme Court, see Washington v. State, 361 So. 2d 61 (Miss. 1978), cert. denied, 441 U.S. 916 (1979), we are unwilling to say that jurors will know it when they see it when considering the “especially heinous” standard. The Mississippi Supreme Court takes the matter full circle. It cites Gregg v. Georgia, supra, in which the Supreme Court expressed its confidence in the Georgia Supreme Court’s interpretation of Georgia’s broad and vague aggravating circumstance statute and quotes language from that opinion approving generally the concept of jury sentencing in death penalty cases. The Mississippi court then expresses its confidence that jurors will know the meaning of the words of the statute.

We have no idea why the Supreme Court denied certiorari in Washington v. State, supra, but we cannot reconcile that decision with Furman v. Georgia, supra, or with Godfrey v. Georgia, supra. It is not even consistent with Proffitt v. Florida, supra, or Gregg v. Georgia, supra, as it does not meet the requirements of those cases that the broad, vague statutory language be narrowed and clarified by appellate judicial decision.

This court has committed itself to comparative review of death sentence cases to assure evenhandedness in the application of the death penalty in this state. See Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), and Collins v. State, 280 Ark. 312, 657 S.W.2d 546 (1983), concurring opinion of Hickman, J., 280 Ark. at 316, (not found in S.W.2d). That review must occur after a properly instructed jury has made its decision to apply the death penalty based upon instructions it can understand which are, in turn, based upon laws which circumscribe the jurors’ death sentencing discretion. If the law limiting the death penalty to cases in which the jury finds, based upon sufficient evidence, that aggravating circumstances exist, that they outweigh mitigating circumstances, and that they compose a sufficient basis to apply the death penalty, then perhaps our comparative review of death sentences will result in no reversals whatsoever. Before that can occur, however, the jurors must, in the words of Godfrey v. Georgia, supra, have their “preconceptions . . . dispelled by the trial judge’s sentencing instructions.”

As we are holding § 5-4-604(8) to be too broad and vague to be sustained under the Eighth and Fourteenth Amendments to the United States Constitution, we need not consider the other points raised by Wilson except as they may be relevant in the event there is a new trial. His argument with respect to whether his conduct could be described as fitting the statute becomes moot.

2. Improper argument

In his closing argument in the sentencing phase of the trial, the prosecutor asked the jurors to impose the death penalty and to “tell Ron Wilson he will never commit another murder.” The court’s ruling refusing to “do anything” about the remark was discretionary, and in the absence of an abuse of discretion, will not be reversed. Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986). We find no abuse of discretion. The request was made in the context of urging the jurors to act as a group in imposing the sentence. In context, it did not suggest that there was evidence from which it could be determined that Wilson would kill again. We find no abuse of discretion.

The sentence to death by lethal injection is set aside and reduced to a sentence to life imprisonment without parole. However, if the Attorney General of Arkansas petitions for a new trial within seventeen days from this decision, a new trial will be granted.

Holt, C.J., Hickman, and Glaze, JJ., dissent.

Hays, J., concurs.

Steele Hays, Justice,

concurring. I concur in the reduction of the sentence, conditioned on the right of the State to retry the appellant, on the grounds that Ark. Code Ann. § 5-4-604(8) (1987) is unconstitutionally vague and overbroad as applied in this case.

Jack Holt, Jr., Chief Justice,

dissenting. I respectfully disagree with the majority and would affirm Ronald Bernard Wilson’s conviction and the sentence of death.

The majority acknowledges that in Proffitt v. Florida, 428 U.S. 242 (1976), the Supreme Court considered a case in which the same language that appears in Ark. Code Ann. § 5-4-604(8) (1987) was used as an aggravating circumstance to justify the death sentence. However, the majority then states that the Supreme Court was apparently unwilling to say that the language of the Florida statute passed constitutional muster. To the contrary, the Supreme Court approved the Florida statute as interpreted by the Supreme Court of Florida. In Proffitt, supra, the Supreme Court concluded: “We cannot say that the provision, as so construed, provides inadequate guidance to those charged with the duty of recommending or imposing sentences in capital cases.” We, in Arkansas, have the same latitude as the Florida courts to interpret and construe our own statute.

The Supreme Court has approved the language of a statute identical to ours. We have a duty and a responsibility to support its ruling and to uphold our statute as noted in Associate Justice Hickman’s dissent.

Darrell Hickman, Justice,

dissenting. The first duty and responsibility of this court is to uphold our statute, if possible. See Phillips v. Giddlings, 278 Ark. 368, 646 S.W.2d 1 (1983); State v. Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980). Rather than do that, the majority has instead chosen to be critical of the way the United States Supreme Court has dealt with the question. The majority has not even tried to uphold the constitutionality of the statute, because if it had, it would find ample authority to do so.

The United States Supreme Court has held the exact language in our statute to be constitutional, and there was no equivocation by the court in its decision. See Proffitt v. Florida, 428 U.S. 242 (1976). The Supreme Court of Florida used the following language to describe the heinous crime: “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” See Proffit v. Florida, supra; Alford v. State, 307 So. 2d 433 (Fla. 1975).

Since that definition or standard has been approved by the Supreme Court of the United States, it simply makes good sense for us to adopt it as our standard. Just as we compare death sentences on appeal, we could apply this standard to each case in which the jury finds the aggravating circumstance in question to exist. See Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). Mississippi easily found that its juries could understand what an especially heinous crime is, and I have no doubt that Arkansas juries can also decide if a crime is especially heinous, atrocious, or cruel. See Washington v. State, 361 So. 2d 61 (Miss. 1978), cert. denied, 441 U.S. 916 (1979).

The majority says if it attempts to do its duty, it might end up like the Oklahoma court with inconsistent decisions. The majority also engages in a good deal of intellectual wool gathering and has created an intellectual legal fog where none exists. The fact is that the majority’s decision is without precedent and contrary to every decision every court has made regarding the question, which is: can the phrase “especially heinous, atrocious, or cruel” be understood and applied by jurors, and applied according to some acceptable standard by the courts? The answer in every case thus far has been yes. The majority’s decision seems to be based on a law review article, a federal appeals court decision saying Oklahoma will not do what it said it would do, and a refusal to face the fact that the United States Supreme Court has said this language is not unconstitutionally vague.

The law cannot always be tied into a neat package for display in the parlor of nice people; sometimes it has raw edges. Our duty is to take it as we find it, not as we would like it to be. We should remember we are an appellate court, not a debating society. This is not a matter of what this court cannot do, it is what this court will not do, which I respectfully submit is its duty.

Regarding the crime committed by Wilson in this case, it was undoubtedly especially heinous, atrocious and cruel. Wilson casually strangled his victim after he raped her. She did not die instantly but lived for several minutes. Her suffering had to be immeasurable with her brain exploding in fear, terror, and pain; her last moments were cruel beyond comparison. It was by any measure a pitiless crime and the victim was unnecessarily tortured. Within hours, Wilson sought out another victim, beat her senseless and raped her.

Ronald Wilson received a fair trial and was sentenced to die under laws that are constitutional. By all rights he should pay the penalty the law requires.

I would affirm his conviction and the sentence of death.

Glaze, J., joins in the dissent.

752 S.W.2d 762

William R. Simpson, Jr., Public Defender, by: Thomas B. Devine III, for appellant.

Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.

SUPPLEMENTAL OPINION ON REHEARING JULY 11, 1988

David Newbern, Justice.

The state has asked whether our decision to vacate the death sentence unless a new trial were sought within seventeen days meant a request for a full new trial or a resentencing only. Our opinion contemplated a request by the state to be made in this court for a full new trial. However, in its petition the state has called to our attention the provisions of Ark. Code Ann. § 5-4-616 (1987) which permit this court to remand to the trial court when a death sentence is vacated solely on the ground of error in the sentencing proceeding. The statute provides, in pertinent part:

Notwithstanding § 5-4-602(3), which requires that the same jury sit in the sentencing phase of a capital murder trial, the following shall apply:
(1) Upon any appeal by the defendant where the sentence is of death, the appellate court, if it finds prejudicial error in the sentencing proceeding only, may set aside the sentence of death and remand the case to the trial court in the jurisdiction in which the defendant was originally sentenced. No error in the sentencing proceeding shall result in the reversal of the conviction for a capital felony. When a capital case is remanded after vacation of a death sentence, the prosecutor may:
(A) Move the trial court to impose a sentence of life without parole, and the trial court may impose such sentence without a hearing;
(B) Move the trial court to impanel a new sentencing jury.

As we found no error other than in the sentencing phase of the trial, it is appropriate to follow the statute. We therefore modify the mandate of our opinion as follows: The sentence of death is vacated, and the case is remanded to the trial court.


author: Per Curiam.

text:
    Howard D. DAVIS v. STATE of Arkansas
    RC 88-31
    750 S.W.2d 60
    Supreme Court of Arkansas
    Opinion delivered June 6, 1988

      Robert Meurer, for appellant.
    No objection.
   Per Curiam.

Petitioner Howard D. Davis, by his attorney, has filed a second motion for a rule on the clerk. His attorney, Robert Meurer, has by affidavit admitted it was his fault that the record was not timely tendered.

We find that the error, admittedly made by the criminal defendant’s attorney, is good cause to grant the motion for a rule on the clerk.

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


text:
    William ROBINSON, Jr. v. STATE of Arkansas
    CR 86-108
    751 S.W.2d 335
    Supreme Court of Arkansas
    Opinion delivered June 6, 1988

      William Robinson, Jr., pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner, William Robinson, Jr., was convicted of two counts of aggravated robbery and sentenced to two concurrent terms of forty years. We affirmed. Robinson v. State, 291 Ark. 212, 723 S.W.2d 818 (1987). The petitioner has filed a petition and a motion to amend the petition, seeking permission to proceed in circuit court for postconviction relief.

The petitioner has alleged fifteen grounds for postconviction relief. In a thirty-nine page petition, the following grounds could have been raised in trial or on appeal but were not: Points one, two and three, which allege that the petitioner was illegally arrested and denied counsel at a critical stage of the proceeding; point eight, which alleges that it is unconstitutional to force him to choose between his right to testify and the state’s burden to prove the existence of his prior convictions beyond a reasonable doubt; points nine and ten, which allege the unconstitutionality of the trial court’s determining the number of prior convictions for sentence enhancement purposes; and point thirteen, which alleges that three of the four convictions used to enhance his sentence were invalid. Rule 37 does not provide a remedy when an issue could have been raised in the trial court or on appeal, unless the issue presents a question so fundamental that the judgment of conviction is rendered absolutely void. White v. State, 290 Ark. 77, 716 S.W.2d 203 (1986); Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied, 452 U.S. 973 (1981).

Points four, five, and six all allege that the state presented insufficient evidence to prove the crimes charged. The petitioner also claims his attorney was ineffective in not challenging the insufficiency of the evidence. Challenges to the weight and sufficiency of the evidence are direct attacks on the conviction and, consequently, may not be raised in Rule 37 petitions. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Nor can the argument be raised by way of an allegation of ineffective assistance of counsel. Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984).

In point eleven the petitioner alleges that after the trial he learned from a juror that during the deliberations the jury speculated as to why the petitioner did not testify. Without discussing the impropriety of attempting to go behind the jury’s verdict, we note that the petitioner has not demonstrated that the jury considered any extraneous prejudicial evidence.

In point twelve, the petitioner challenges our standard of review on appeal with respect to several points including circumstantial evidence and the credibility of witnesses. Rule 37 is not the equivalent of either a second appeal or a petition for rehearing.

In point seven, the petitioner claims that his attorney was ineffective in advising him not to testify. He states that his attorney told him that if he testified that he would be cross-examined as to his prior felony convictions. He claims that he would have testified except for this advice, and that if the state was allowed to impeach him with prior felonies, that would be unconstitutionally relieving the state of its burden of proving the existence of prior felonies beyond a reasonable doubt for purposes of sentence enhancement.

To prove ineffective assistance of counsel, the petitioner must show that, counsel’s performance was deficient in that counsel made an error so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Strickland v. Washington, 466 U.S. 668 (1984).

The state has the right to impeach a witness’s credibility with prior convictions. A.R.E. Rule 609. Such questions would not shift the burden of proof. The questions are used to impeach credibility not to prove the existence of prior convictions. For purposes of sentence enhancement, prior convictions are proven by judgments during the punishment phase of the trial. Ark. Code Ann. § 5-4-502 (1987) [Ark. Stat. Ann. § 41-1005 (Repl. 1977)]. The accused has the right to choose whether to testify in his own behalf. Moore v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968). Counsel may only advise the accused in making the decision. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984). The decision to testify is purely one of strategy and therefore, not reviewable under Rule 37. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985).

The petitioner also faults his attorney for not objecting to the circumstances of his arrest. He states that his arrest warrant was not issued by a magistrate, that he was denied an attorney at the probable cause hearing, and that a statement he gave was the product of the illegal arrest. The arrest warrant is not in the record nor were any facts testified to with regard to the arrest or the probable cause hearing. However, the only fruits of the arrest were the petitioner’s two statements and both of those were exculpatory. Therefore, even if the petitioner’s allegations are true he has shown no prejudice.

The petitioner claims that his attorney should have objected to the following jury instruction:

[The petitioner] is charged with two counts of the offense of aggravated robbery. To sustain these charges the state must prove the following things beyond a reasonable doubt as to each count:
First: That, with the purpose of committing a theft, [the petitioner] employed or threatened to immediately employ physical force upon another; and
Second: That [the petitioner] was armed with a deadly weapon or represented by words or conduct that he was armed with a deadly weapon.

The petitioner argues that the jury should have been instructed to find guilt only if it found that he was actually armed with a deadly weapon since that was what the information charged. He contends that merely representing that one is so armed is a totally different offense and that he was “surprised” by the instruction. The instruction tracks AMCI 2102 and the armed robbery statute, Ark. Code Ann. § 5-12-103(a)(1) (1987) [Ark. Stat. Ann. § 41-2102(1)(a) (Repl. 1977)]. One victim testified that his assailant was armed with a knife and the other was threatened with a hammer. Therefore, there would have been no basis for an objection by counsel.

The petitioner claims that his counsel was remiss in not seeking a continuance in order to interview certain witnesses who could have offered alibi testimony and explain why there was a hammer and knife missing from the petitioner’s home. The petitioner fails to provide us with the names of the witnesses or the substance of what their testimony would have been; therefore, we will not consider the argument. See Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984).

Finally, the petitioner alleges that our determination of the merits of his claims in this petition denies him due process and equal protection and that we should only determine whether his claims are cognizable under Rule 37. The petitioner does not provide convincing argument or authority for this novel theory. There is no constitutional right to a postconviction proceeding; but when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. Pennsylvania v. Finley, 481 U.S__, 107 S. Ct. 1990 (1987). Our requirement that a petition meet certain threshold requirements to gain permission to proceed in circuit court is fundamentally fair.

The petitioner asks that allegations of ineffective assistance of counsel be attached to all of the grounds in his petition. As we stated before, to warrant relief on allegations of ineffective assistance of counsel, the petitioner must show prejudice to the degree that the outcome of the trial was unreliable. A petitioner must meet the heavy burden of showing that counsel’s conduct was outside the wide range of reasonably professional assistance and sufficiently deficient to have denied petitioner a fair trial. Strickland v. Washington, supra. The petitioner’s broad request fails to shows, within each of the grounds, how counsel’s conduct was deficient and how that deficiency affected the outcome of the trial.

The petitioner has filed a motion to amend asking that he be allowed to supplement or amend if there is a technical deficiency which would foreclose a hearing on any of the issues. The motion does not provide us with any additional support for his claims which would convince us to grant the petition.

The petitioner has also filed a motion asking that he be appointed counsel. Since postconviction proceedings under Rule 37 are civil in nature there is no constitutional right to appointment of counsel to prepare a petition under Rule 37. Fretwell v. State, 291 Ark. 221, 718 S.W.2d 109 (1986). Rule 37.3 provides for the appointment of counsel by the circuit court where a hearing is granted and where the petitioner is unable to afford counsel.

Petition and motions denied.


text:
    Michael SMITH v. STATE of Arkansas
    CR 87-123
    750 S.W.2d 61
    Supreme Court of Arkansas
    Opinion delivered June 6, 1988
   Per Curiam.

A Show Cause Order was issued by this court ordering appellant’s counsel, Roger T. Jeremiah, to appear and show cause why he should not be held in contempt of this court for failing to comply with this court’s order to file appellant’s brief by a specified time.

The record in this matter was filed on June 19, 1987, and appellant’s brief was originally due on July 29. On July 27, appellant’s counsel filed a motion to extend the brief time due to his considerable case load. That motion was granted, and appellant was given until August 31 to file his brief. Between August 1987 and January 1,1988, counsel filed a total of eight motions to extend brief time. Each was granted.

Between January and April 1988, counsel filed eight additional motions to extend. This court entered an order on April 27, 1988, granting a final extension until May 9, 1988. Counsel admits receiving a copy of the court’s order of April 27, 1988, granting a final extension until May 9,1988, yet counsel failed to file his brief within the required time. On May 9, 1988, counsel responded by filing another motion to extend. The brief was tendered to the clerk of the court on May 26, 1988.

Counsel Roger T. Jeremiah appeared before this court Tuesday, May 31, 1988, and admitted the facts stated in the Show Cause Order issued by this court were true and correct. He further stated that he neglectfully failed to file his brief within the time specified by the court and extended to the court his apology.

The appellant’s counsel, Roger T. Jeremiah, is held in contempt of this court and fined $250.00.


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

text:
    John Russell BONDS v. STATE of Arkansas
    CR 88-4
    751 S.W.2d 339
    Supreme Court of Arkansas
    Opinion delivered June 13, 1988
    [Rehearing denied July 11, 1988.]

      Jack M. Lewis, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.

       Purtle, J., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

Appellant John Russell Bonds was convicted of rape of his youngest daughter and incest against his eldest daughter and sentenced to a life and ten-year term, respectively, the sentences to run concurrently. He argues five points for reversal. We find no error and affirm the judgment of the trial court.

PRIOR CRIMES

Bonds contends that the trial court erred in permitting the State to introduce evidence of sexual contact he had with his daughters other than that for which he was charged in violation of Ark. R. Evid. 404(b). We disagree.

Rule 404(b) provides in pertinent part as follows:

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

In Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986), we held that if evidence of prior acts of sexual contact between an accused and his step-daughter is relevant to show the rape of which appellant was accused had occurred, the evidence is admissible under Rule 404(b). Accordingly, since evidence of prior acts of sexual contact between Bonds and his daughters was relevant to show that the rapes and acts of incest of which Bonds was accused had occurred, the evidence was admissible.

NOTIFICATION OF CHARGES

Bonds argues that he was not adequately notified of the charges against him in violation of the sixth amendment to the United States Constitution and Art. 2, § 10, of the Arkansas Constitution because the rape and incest informations failed to specify the persons against whom and the specific dates on which the crimes were allegedly committed. We disagree.

The felony information charging Bonds with rape provided in pertinent part as follows:

[T]he State of Arkansas Charges John Russell Bonds with the crime of violating Ark. Stat. Ann. Section 41-1803 (C) [Ark. Code Ann. § 5-14-103 (1987)] Rape, to-wit: The said Defendant, in Van Burén County, Arkansas, on repeated occasions, engaged in sexual intercourse and deviate sexual activity with another person who was less than fourteen (14) years of age, against the peace and dignity of the State of Arkansas. A Class Y Felony.

The State amended the information to state that “said conduct by the defendant as alleged occurred within three years immediately preceding the filing of the original information.”

The felony information charging Bonds with incest stated in pertinent part as follows:

[T]he State of Arkansas Charges John Russell Bonds with the crime of violating Ark. Stat. Ann. Section 41-2403 [Ark. Code Ann. § 5-26-202 (1987)] (INCEST) committed as follows, to-wit: The said Defendant(s), in Van Burén County, Arkansas on or about the_day of_, 19_, did unlawfully, feloniously, and being 16 years of age or older, had sexual intercourse and/or deviate sexual activity with a person he knew to be a descendant, step-child, or adopted child, against the peace and dignity of the State of Arkansas.

During a recess after the jury was sworn but before testimony was taken, the State made it clear that it would prove that the acts of incest for which Bonds was charged occurred within the three-year statute of limitations [Ark. Code Ann. § 5-1-109 (1987)].

Although it is better and safer practice to include in an information or indictment the date on which or the time frame in which an offense occurred, it is not necessarily fatal to an indictment or information if such data is not included, unless time is an essential element of the offense. See Kirkam v. City of North Little Rock, 227 Ark. 789, 301 S.W.2d 559 (1957). See also Grayson v. State, 92 Ark. 413, 123 S.W. 388 (1909); Threadgill v. State, 99 Ark. 126, 137 S.W. 814 (1911).

Under the facts of this case, it was not necessary that the State include in the rape and incest informations the dates on which the offenses occurred. First, it is clear that time is not an essential element of rape, Huffman v. State, 288 Ark. 321, 704 S.W.2d 627 (1986), or incest. Secondly, the State informed Bonds that the rape for which he was charged took place within three years immediately preceding the filing of the original information and that the acts of incest for which he was charged took place within the statute of limitations. Furthermore, in crimes of this nature against family members, as compared to offenses against victims with whom the accused had no prior contact, an accused is more likely to be aware of the specifics of the charges against him and therefore better able to prepare his defense.

Since he did not make the argument below, we will not address Bonds’ contention that his constitutional rights were violated in that the indictments failed to include the names of the victims of the crimes. Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). We do not consider issues raised for the first time on appeal. Id.

DOUBLE JEOPARDY

Bonds contends that his convictions violated the double jeopardy clauses of the United States and Arkansas Constitutions based upon the following argument:

Of the multitude of incidents testified to against the defendant it is as reasonable as not that the jury believed only one daughter on one separate instant which may or may not have occurred after the child turned fifteen. The burden is on the state to prove the defendant guilty. But which charge, if any, did they prove?

Bonds has failed to support his double jeopardy contention with convincing argument or any citation of authority. He has in effect asked us to research the law on the subject. Therefore, we will not consider his assignment of error. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

ADMISSIBILITY OF WRITING LOG

Bonds argues that the trial court erred in not admitting into evidence a “writing log” compiled by his youngest daughter. We hold otherwise.

On cross-examination, the defense and the daughter had the following dialogue:

Q. Do you keep any type of diary?
A. We had to keep a writing log for English. It was like fifteen minutes every Friday we would write stuff in it about how the week was.
Q. And this was for English.
A. Uh-huh.
Q. Did you hand those things in?
A. We hand — she didn’t — she wouldn’t read them, and she never —• we didn’t hand them in; she just checked to make sure we did it. We didn’t hand it in. I had an assignment that I had to turn in, but —
Q. You did keep a diary, though, didn’t you, that you wrote your secret thoughts in?
A. Not a diary.
Q. Well, you wrote them down.
A. In a writing log.

The defense then attempted to introduce the log for impeachment purposes stating:

Your Honor, these writings were writings that I think she admitted — she stated she did it for English class, but when she looks at them they are not — they are notes about boys, who she’s in love with, some thoughts of little girls is not going to tell someone else, especially their parents. They don’t want anyone else to look at it; it’s their secret thoughts.
But in all this time there’s not one mention of anything, not one, of her father of anything — trouble with her father or this abuse in all these writings. Now she tells how happy she is in there; she tells how mad she is sometimes, but it’s always because she’s in love or something was not happening in school or a boy she’s in love with and they broke up and this stuif.

The trial judge refused to admit the writing log stating, “I don’t see any impeachment here.”

Subsequently, defense counsel asked, “Well, you’ve never written anything down that is available right now concerning these acts you have complained of, have you?” She replied, “No.”

We do not address the issue of whether the trial court erred in refusing to admit the writing log into evidence since even assuming this was error, Bonds has not demonstrated any prejudice resulted which would require reversal. We will not reverse for errors which do not affect the essential fairness of a trial. See Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).

After the trial court declined to admit the log for impeachment purposes, the daughter admitted that there was nothing in the log concerning acts of sexual contact by her father. The lack of reference to her father in her writing log was exactly what Bonds was attempting to introduce into evidence for impeachment purposes.

PROSECUTOR’S MISCONDUCT

Bonds contends that the prosecutor’s remarks in his opening statement and closing argument were so inflammatory and prejudicial that he was denied a fair trial.

In his opening statement, the prosecutor stated:

But Kim [the youngest daughter] finally had enough and early, early this year, after this last episode on the 26th when he hurt her and frightened her so badly, that she went to school and she confided what happened, what was being done to her and had been done to her at school — an officer of the school, a teacher’s aid that was working with the cheerleaders — she was a cheerleader. Now that person has since moved off and they’re not here, and under rules of evidence it’s not admissible; she couldn’t tell her what Kim told her anyway.

In his closing argument, the prosecutor remarked, “Kim told a young friend who was a teacher’s aid at school, and that blew the whole thing open.”

Bonds’ counsel did not object to the closing statements and only objected to the opening remarks on the basis that the prosecutor was repeating himself. Since Bonds did not make a specific objection to the allegedly inflammatory or prejudicial nature of prosecutor’s opening or closing statements, we will not consider his argument. See Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957 (1987).

Pursuant to Ark. Sup. Ct. R. 11(f), we have made our own examination of all other objections made at trial and find no reversible error.

Affirmed.

Hays and Glaze, JJ., concur.

Tom Glaze, Justice,

concurring. I concur as to the admissibility of the victim’s writing log. The victim kept the log in connection with an English class she attended. One must stretch his or her imagination to conclude that the victim’s testimony that the appellant (father) had raped her would be impeached by showing the victim had omitted her father’s name as a lover or sexual encounter in her English assignment. Clearly, the trial judge did not abuse his discretion in excluding the girl’s writing log as irrelevant. By this concurrence, I leave no doubt that I would affirm on this point without reaching the question concerning the appellant’s failure to demonstrate prejudice.

Hays, J., joins in this concurrence.