author: Darrell Hickman, Justice.

text:
    TANDY CORPORATION, et al. v. Johnny Dale BONE
    84-91
    678 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered October 22, 1984
    [Rehearing denied December 3, 1984.]

      Wright, Lindsey ir Jennings, for appellant.

      R. David Lewis, for appellee.
   Darrell Hickman, Justice.

Johnny Dale Bone, manager of a Radio Shack store in Little Rock, Arkansas, was fired or quit as a result of an investigation of irregularities in the operation of his store. Bone sued his employer alleging intentional infliction of mental distress as a result of the investigation. He also claimed that he was later slandered by another employee. The jury returned a verdict against Tandy Corporation, the parent company of Radio Shack, for $5,000 for slander, $9,000 for infliction of emotional distress and $100,000 in punitive damages. Tandy appeals and Bone cross-appeals.

The appellants raise seven points on appeal, two of which are meritorious and require us to reverse the judgment and remand the case for a new trial. The appellee raises five questions on cross-appeal, one of which has merit.

Over the objection of the appellants, the court gave AMI 2217, a standard jury instruction, which concerns punitive damages. We held in Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979), that this instruction was designed to be used in cases of neligence, not in cases such as this one which involve an intentional tort. Just as we did in Ford Motor Credit Co., supra, we reverse and remand the case for a new trial because of this error.

The appellee argues that the appellants did not make a proper objection to this instruction because no instruction was proffered in substitution. There is no such requirement. All that is required to preserve an objection for appeal regarding an erroneous instruction of law is to make a timely objection and state valid reasons for the objection. ARCP Rule 51. The appellants did both.

The trial court was also wrong in commenting on the weight to be given certain evidence offered by the appellants in the form of computer printouts. The court stated that the evidence was double hearsay and “terribly, terribly suspect.” When the appellants moved for a mistrial, the court gave a mild admonition to the jury to disregard the court’s remark. The Arkansas Constitution prohibits trial judges from commenting to the jury regarding matters of fact which are within the province of the jury. Art. 7 § 23 Ark. Const. (1874). The admonition given the jury by the court is as follows:

Ladies and Gentlemen, they are scolding me because I’m talking about the legal significance of it. You ladies and gentlemen don’t pay any attention to what the court says about this. It’s just a legal question. You don’t let that influence you in your weighing of the evidence which you are receiving.

That admonition could not cure the remarks by the trial court whose words and opinions are undoubtedly given a good deal of weight by a jury.

At the request of the appellants, the court instructed the jury that statements, although slanderous, may be privileged when made without malice, in good faith, and relate to a subject bearing upon the employment relationship. There was no basis for giving this instruction. The alleged statement in this case was made by an employee to a customer who inquired of Bone’s whereabouts. In essence the statement was that Bone had been fired for stealing. The jury had no circumstance before it which would give rise to the defense of privilege. See Dillard Dept. Stores, Inc., v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982).

Aside from these questions and other questions which we must discuss, the most difficult question before us is Bone’s main cause of action which he describes as the intentional infliction of mental distress and which we have called the tort of extreme outrage.-The appellants argue that there is no substantial evidence that would support a finding of intentional infliction of mental distress or extreme outrage and request that the judgment be reversed and dismissed. In reviewing this question on appeal, we must examine the evidence in the light most favorable to the appellee, who, in this case, is Johnny Dale Bone. We affirm if there is any substantial evidence to support the finding of the jury. Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983). We find there was in this case as we will explain.

We first examined the question of outrage in M.B.M. Co. v. Counce, 286 Ark. 269, 596 S.W.2d 681 (1980), where we said:

. . . .[0]ne who by extreme and outrageous conduct wilfully or wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress.
By extreme and outrageous conduct, we mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. See Restatement of the Law, Torts, 2d 72, § 46, Comment d.

In Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982), we found no outrageous conduct and emphasized the conduct complained of must be both extreme and outrageous. We said:

The new and still developing tort of outrage is not easily established. It requires clear-cut proof. ‘Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ (Italics supplied.)

In two cases we have held that a case was made for the jury of extreme outrage. In M.B.M. Co. v. Counce, supra, an employee was suspected of stealing but was told she was being laid off because of too many employees. She was later told she must submit to a polygraph test before she would receive her last paycheck. Although she passed the test, $36 was deducted from her final paycheck as her share of the missing money. She was denied unemployment benefits due to the reasons given by her employer for her dismissal. In a more recent case, the owner of a cemetery that held itself out as supplying perpetual care, caused exposure of vaults by excavation work and travel across the graves, all with such callous disregard that it was found to be outrageous conduct. Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984).

Not all courts are in agreement about the tort of outrage and how to treat it. As stated in 38 Am. Jur. 2d, Fright, Shock, and Mental Disturbance, § 13:

In respect of the right to maintain an action for a bodily injury or illness resulting from a mental or emotional disturbance, the authorities are in a state of dissension probably unequaled in the law of torts.

We have taken a somewhat strict approach to this cause of action. Recognition of this new tort should not and does not open the doors of the courts to every slight insult or indignity one must endure in life. For example, abrasive profanity alone is not sufficient reason to have a cause of action. W. Prosser, The Law of Torts, § 12 (4th Ed. 1971); see also Brooker v. Silverthorne, 111 S.C. 553, 99 S.E. 350 (1919); Food Fair, Inc. v. Anderson, 382 So. 2d 150 (Fla. Dist. Ct. App. 1980). But see Curnett v. Wolf, 244 Iowa 683, 57 N.W.2d 915 (1953) and 15 ALR2d 108 (1951).

The relevant facts are as follows. Johnny Dale Bone was hired in early 1983 as the manager of a Radio Shack store in Little Rock, Arkansas. Brooks Robbins was his assistant. Bone said he suspected that Robbins was stealing, but felt he could not prove it. He did send a memorandum to his superior regarding the unsatisfactory conduct of his employee. Bone was informed on two occasions by his supervisor that certain practices in the store were not satisfactory. On August 13, 1983, his supervisor, Mr. Max Griswold, and two security people came to the store at 9:30 a.m. to conduct an investigation. Bone and Robbins knew the investigation was going to be made. They were questioned at thirty minute intervals during the day. According to Bone, the security men cursed him, threatened him, and refused on two occasions during the questioning to allow him to take medication. Bone said, however, he was not touched by the security people. Brooks Robbins testified that he admitted to the investigators he was guilty of theft and was fired on the spot. That afternoon, about 3:30 p.m. after the questioning, Bone was asked to take a polygraph examination and he consented. However, he was in a highly agitated condition and he said he again requested that he be allowed to take his medication, which was a tranquilizer. It is conceded he was denied the request because it might affect the outcome of the test. Bone was taken to another location in Little Rock to take the test, but he hyperventilated. Paramedics were called. Bone recovered sufficiently to be taken home by Griswold. He returned to work the next day but could not continue. He called a psychiatrist for help and was eventually hospitalized on August 23. He remained in the hospital about a week and never returned to work. Bone’s attorney wrote the appellants in August informing them that suit would be filed. The appellants offered testimony that Bone was terminated because he failed to return from medical leave.

According to the evidence, Bone had been taking Valium for at least three years and had a prescription for it from a psychiatrist. The psychiatrist, who treated Bone for the hyperventilation and anxiety, testified that Bone suffered from a personality disorder which made him more susceptible to stress and fear than someone who did not have the personality disorder. He said that Bone had paranoid trends and episodes in which he is nearly, but not completely, psychotic and unable to function effectively with other people socially. He said that Bone had a low tolerance for frustration. Bone had first sought the services of a psychiatrist when he was in a federal penitentiary in 1979.

The appellants’ evidence was contradictory: Bone was not cursed or called names during the questioning. One of the officers testified that the questioning began about noon and he did not know Bone took Valium until they were leaving to take the polygraph test and Bone then requested it. Bone told him then that he took it in the evening to relax. He told Bone it would be best if he could do without it because it would affect the polygraph test and Bone agreed.

Bone’s suit was based on the fact that he was interrogated most of the day at 30 minute intervals, alternating between him and his assistant without a break for lunch, he was denied his Valium or medication when he was obviously under emotional stress, and the interrogators cursed him, accused him of stealing and threatened to have him arrested.

Was the employer’s conduct extremely outrageous? Bone knew that he was going to be interrogated about the operations of the store before the security men arrived. There were serious deficiencies in the operation of the store. Bone knew that he was responsible for the operation of the store and would have to account for any discrepancies. Furthermore, Bone did not object to the polygraph examination and, in fact, agreed to take it. Fie returned to work the next day and stated that he still wanted to take the polygraph examination. The fact that he was questioned, the way he was questioned and requested to take a polygraph examination would not be outrageous conduct on the part of an employer investigating possible theft, serious inventory shortages, and unacceptable business practices as the employer had evidence of here. The conduct on the part of the employer that does give us difficulty is the undisputed evidence that Bone was obviously undergoing a good deal of stress, requested his Valium or medication, and was denied that privilege. The employer was on notice at that point that Bone may not have been a person of ordinary temperament, able to endure a stressful situation such as he was placed in without injury.

In Givens v. Hixon, supra, we noted that the defendant knew nothing about the plaintiff’s heart condition or the fact he was easily upset. Also, in the case of M.B.M. Co. v. Counce, supra, we adopted the standard that “[t]he emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it.” See also Prosser, supra, p. 50.

If the employer in this case had been completely ignorant of Bone’s condition, it may be that Bone would not have a case of extreme outrage. However, the employer was not completely ignorant of Bone’s temperament nor for that matter diligent in learning about Bone’s background. The employer discovered shortly after Bone was employed that he had lied on his application about his criminal record and had been convicted of a felony. His supervisor did not bother to find out what the conviction was for. The supervisor said that if he had learned that it was for selling heroin he would have terminated Bone. He could have easily discovered this information and perhaps more about Bone’s background.

More importantly, we have to take Bone’s testimony at its face value in examining the legal question before us. Bone said that on at least three occasions during the day he requested that he be permitted to take his medication. At one time he said he reached for a drawer to get it and the drawer was slammed shut by one of the investigators. He said that before he went to take the polygraph test he was “begging” to take it. His supervisor admitted that Bone requested that he be allowed to take his Valium before the polygraph test was to be administered. One of the investigators testified that he intended to place Bone and the other employee in a somewhat stressful situation. So we do not have a situation of an employee of ordinary emotional stamina, and we do not have a situation in which the employer was totally ignorant of the physical or emotional condition of the appellee as was in Givens- v. Hixon, supra. It was for the jury to decide whether under the circumstances it was outrageous conduct for the employer to deny Bone his medication and to continue to pursue the investigation knowing Bone was on medication or Valium. We emphasize that the notice to the employer of Bone’s condition is the only basis for a jury question of extreme outrage. Whether Bone’s testimony was credible, whether he had intentionally lied to his employer, whether the employer was reasonable in denying him his medication, and whether, considering all the circumstances, the employer was guilty of outrageous conduct that proximately caused emotional distress to Bone were all questions for the jury. Because of the evidence we have outlined, there would be substantial evidence to support a verdict for outrage.

The jury also found that Bone had been slandered when an employee of Radio Shack told a customer that Bone had been fired for stealing. The appellants argue on appeal that there was insufficient evidence of slander. We do not agree. A customer testified an employee, he assumed to be the manager, told him the former manager had been fired for stealing. Two other witnesses testified an employee told them that Bone was fired for reasons that he did not “want to get into right now.” All inferences must be taken in the light most favorable to the appellee and from this evidence the jury could easily have found slander. See Arkansas Ass. Telephone Co. v. Blankenship, 211 Ark. 645, 201 S.W.2d 1019 (1947).

The appellants argue that the trial court erred in refusing to give an instruction that the jury could take into account Bone’s lack of good character and reputation in assessing any damage to his reputation. This argument was made based on the evidence of Bone’s conviction in federal court. Bone admitted the conviction during direct examination. This is not evidence of Bone’s reputation. Specific instances of wrongdoing are not reputation for bad character or opinion evidence that is contemplated by such an instruction. See 2 D. W. Louisell and C. B. Mueller, Federal Evidence § 143 (1978).

Appellants argue that it was wrong to allow Bone to deny that he was actually guilty of a crime for which he had been convicted. A witness cannot offer evidence which would amount to a retrial of that prior conviction. Jones v. State, 277 Ark. 345, 641 S.W.2d 717 (1982). Bone should not have been allowed to try to demonstrate his innocence, but this is an issue of relevancy and the trial judge is permitted a wide range of discretion. Jones v. State, supra.

Another point raised by appellant concerns hearsay. Bone testified that at one point he had been told by his probation officer to put “no” if he were asked on an employment form whether he had been convicted of a felony. The objection was properly overruled. This is not an example of hearsay since Bone was not offering the statement to prove whether the probation officer so directed him but instead he was offering it to prove his motive in so filling out the form. This was also a discretionary ruling.

On cross-appeal Bone argues that the trial court erred in not entering the rate of interest on the judgment, which he contends should have been ten percent from the date of the judgment, according to Ark. Stat. Ann. § 29-124 (Repl. 1979). This is a matter which can be corrected upon retrial.

Bone argues that the trial court erred in permitting introduction of the appellee’s employment application and cross-examination regarding his prior employment history because they were irrelevant. Bone admitted he lied on the employment form and, therefore, the trial judge did not abuse his discretion in admitting the form.

Bone also argues that the court erred in refusing to direct a verdict for him on the appellants’ counter-claim for $28,000 in inventory losses. No motion for a directed verdict appears in the record. Bone (cross-appellant) therefore cannot raise the court’s failure to grant it. As part of this point Bone also argues it was error for the court to instruct the jury that Bone owed appellants a fiduciary duty. There was no error since Bone was the appellants’ employee and agent in this case, as manager of their store, and, thus, owed them a fiduciary duty. See H. Resuchlein and W. Gregory, Handbook of the Law of Agency and Partnership, §§ 4, 67 (1979); Restatement (Second) Agency § 220 (1958); 53 Am. Jur. 2d Master and Servant § 97 (1953). Bone argues that his employment contract controls any duty he owed and that it provides that an employee will be liable for losses due only to gross negligence or dishonesty. The contract contains no such limitation; it merely recites that if there are losses occasioned by the dishonesty or gross negligence of the employee, then the employer has the right to deduct the losses from the employee’s wages.

The final issue, raised on cross-appeal, involves records. Immediately after this incident, the appellants conducted an inventory by computer and offered into evidence the results of computation in the form of certain printouts. An objection was made that these printouts were hearsay. Bone here argues they were prepared after notice of suit and for the purposes of testimony at trial and could not be admissible under Rules of Evidence 803 (6). The trial court, in its discretion, allowed the printouts to be admitted, and we cannot say the decision was clearly wrong.

The appellee also argues that the appeal should be dismissed because of violation of Supreme Court Rule 9. We find no such violation.

The case is remanded for a new trial.

Reversed and remanded.

      For example, Bone had difficulty explaining the sale to a customer of a piece of merchandise which involved a check made payable directly to him which noted it was in “repayment of a loan.” Bone testified that the equipment was his and not the property of Radio Shack, but he could not explain why the notation was made on the check. Bone said he denied throughout the investigation that he was guilty of any theft or committed any intentional dishonest act.

      The evidence revealed that Bone had lied to his employer in several instances. On his employment application form, .he marked “No” in answer to whether he had been convicted of a felony. In fact, he had been convicted of distributing heroin and sentenced to the federal penitentiary. He marked that he was a high school graduate when actually he had only completed the ninth grade. He explained that he had a graduate equivalency diploma and thought that the question permitted the answer he gave. He conceded that he lied when he noted that he had completed one year of college. He had not. His employer did not know that he had been under medication or taking Valium for at least three years. Bone testified that he was not asked at the time of his employment if he had ever been treated by a psychiatrist.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Dennis P. GLICK v. STATE of Arkansas
    CR 84-56
    677 S.W.2d 844
    Supreme Court of Arkansas
    Opinion delivered October 22, 1984

      Gibson Law Office, by: Charles S. Gibson, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

Appellant, an inmate at the Arkansas Department of Correction (ADC), was tried and convicted in the Jefferson County Circuit Court of escape in the first degree, kidnapping, and two counts of theft of property. His punishment was enhanced because he was found to be an habitual offender. The verdicts were returned on September 27, 1983. The court pronounced sentence but took under advisement the matter of concurrent and consecutive sentencing.

On September 29, 1983, the court entered a judgment and commitment on the jury verdicts which stated that the appellant was to receive 20 years for escape in the first degree, 20 years each on two counts of theft of property, and a life term for kidnapping. The judgment stated that one of the 20 year sentences for theft of property would be served concurrently with the other theft sentence, and the other sentences would be served consecutively. Notice of appeal was filed on October 26, 1983. On October 17, 1983, appellant, who was confined to the maximum security unit at Tucker, wrote the judge to inquire whether the sentences would be concurrent with the sentences he was already serving. On January 9, 1984, the court entered an “order amending judgment and commitment,” in which it found that a clerical error had been made and that the record should be corrected to show that the sentences received by appellant were to be consecutive with any sentences which the defendant was presently serving.

The only assignment of error is that the trial court was without jurisdiction to amend its judgment and commitment. We hold that trial court was without jurisdiction to modify the sentences after appellant commenced to serve the sentences.

This same question was considered in the case of State v. Manees, 264 Ark. 190, 569 S.W.2d 665 (1978). Manees moved the trial court to vacate or modify his sentences which had been pronounced 2 years earlier. The trial court granted appellant’s motion and modified the sentences to run concurrently instead of consecutively, as originally pronounced. The state opposed the motion to modify the sentences. This court upheld the state’s contention that the sentence could not be modified when we stated: “Once a defendant is placed in the custody of the [ADC] to the end that he may commence serving his sentence under a valid judgment of conviction, the [ADC] has exclusive jurisdiction for the care, control and supervision of the individual and the trial court has no authority to intervene. . .” This court considered asomewhat similar case in Williams, Strandridge & Deaton v. State, 229 Ark. 42, 313 S.W.2d 242 (1958). In the last cited case the clerk made out commitments in conformity with the docket entries and the petitioners were returned to the penitentiary where they were serving prior sentences. The inmates had entered guilty pleas. Two weeks later the court discovered that the commitments were silent as to whether the sentences were to be consecutive or concurrent with the sentences then being served. The court issued new commitments providing that the sentences would be served consecutively. On appeal the state admitted that the court would normally be without jurisdiction to amend a judgment and commitment but argued that the trial court was merely correcting a clerical error. This court agreed that a trial court could correct its j udgment to make it speak the truth in aid of the jurisdiction of the appellate court when it otherwise had no power to amend. In reversing the trial court in Williams this court quoted McPherson v. State, 187 Ark. 872, 63 S.W.2d 282 (1933) and stated: “It is uniformly held that a court of record may correct mistakes in its record which did not arise from, the judicial acts of the court but from the mistakes of its recording officers.” The court held there was no clerical error and reversed the trial court’s order changing the sentences to run consecutively.

This court has held that after a valid sentence has been put into execution the trial court has no power or jurisdiction to modify, amend or revise it. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977). In the absence of an order to the contrary, sentences are to be served concurrently. Arkansas Stat. Ann. § 41-903(2) (Repl. 1977). Therefore, when the appellant was delivered to the ADC he commenced serving the sentences which were pronounced on September 29, 1983. The judgment and commitment were silent as to whether the sentences were consecutive or concurrent. The action by the court in attempting to modify the sentences was obviously not the correction of a clerical mistake but rather a judicial act.

The appellant contends that notice of appeal and designation of the record terminated the jurisdiction of the trial court. Except for appointment of defense counsel, the trial court’s jurisdiction is not terminated until the record is lodged in this court or the sentence has been put into execution. Fletcher v. State, 198 Ark. 376, 128 S.W.2d 997 (1939).

The order, of January 9, 1984, is set aside and the judgment entered on September 29, 1983, is reinstated.

Affirmed as modified.

Hickman, J., concurs.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice,

text:
    COLUMBIA COUNTY RURAL DEVELOPMENT AUTHORITY and The CITY OF MAGNOLIA, ARKANSAS v. B. J. HUDGENS et al
    84-134
    678 S.W.2d 324
    Supreme Court of Arkansas
    Opinion delivered October 22, 1984

      Bruce D. Moloch, for appellant Columbia County Rural Development Authority.

      Ronnie J. Bell, for appellant City of Magnolia.

      R. David Freeze of Smith, Stroud, McClerkin, Dunn ¿r Nutter, for appellees.
   Robert H. Dudley, Justice.

The single issue on appeal is whether a corporation organized under the Rural Development Authority Act has the authority to exercise the power of eminent domain for the purpose of acquiring, constructing and equipping a multi-use water supply lake.

The Columbia County Quorum Court approved Amended Ordinance No. 83-1, which recited that the county’s water supply wells for residential and industrial use were being depleted and called for an election to determine whether to adopt a 1% sales and use tax within the county in order to construct a multi-use water supply lake. The voters approved the tax and the cities of Magnolia, Taylor, Waldo, Emerson and McNeil entered into an agreement with Columbia County to pool the money collected from the tax to finance the project. The stated purpose of the interlocal agreement is to provide for a multi-use water supply and recreation lake. The Columbia County Quorum Court subsequently passed Ordinance No. 83-3 which provided for the creation of the appellant corporation, the Columbia County Rural Development Authority.

The appellant contends that it has the power of eminent domain as set forth in Ark. Stat. Ann. § 35-401, since it will supply water to the contracting cities. The appellees are landowners within the area covered by the proposed lake site. The City of Magnolia was allowed to intervene.

The trial court held that appellant did not have the power of eminent domain to acquire the land in question for a multi-use water supply lake. We reverse. Jurisdiction is in this court under Rule 29 (1) (c).

Our Rule on the authority to exercise eminent domain is clear:

Statutes which relate to the power of eminent domain should be strictly construed in favor of the landowner largely because they are in derogation of the common right. This rule is particularly applicable where there is an alleged delegation of power. As a result of strict construction, the power itself must be clearly expressed by the statute or necessarily implied ###

City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W. 2d 30 (1958).

Since 1895, corporations organized for the purpose of supplying water to municipalities clearly have had authority to exercise the power of eminent domain. Ark. Stat. Ann., Title 35, Chapter 4 (Repl. 1962). The rationale behind the legislation is that supplying water to municipalities meets a public purpose. Constitutionally, private property can be taken under the power of eminent domain only for a public use. See City of Little Rock v. Raines, 241 Ark. 1071 at 1083, 411 S.W.2d 486 (1967).

In 1.963 the Rural Development Authority Act was passed. Ark. Stat. Ann. Title 20, Chapter 14 (Repl. 1968). Section 20-1403 (a) of this act provides for the formation of public corporations which are authorized to acquire real property for private use as well as public use. An example of private use is the authorization to acquire small farms and consolidate them into adequate farming units. Ark. Stat. Ann. § 20-1403(g)(2)(b). An example of public use is the authorization to build reservoirs and water works for community purposes. Thus, the original Rural Development Authority Act included the power of eminent domain for private use, making the act constitutionally suspect. By Act 75 of 1967 the power of eminent domain was removed from the Rural Development Authority Act. By this action the General Assembly deleted the power of eminent domain when it was based solely upon the type of corporation which sought to exercise the power. It is important to note, however, that the General Assembly left intact the 1895 statute, § 35-401, which authorizes the power of eminent domain to any corporation organized for the specific purpose of supplying water to municipalities. The legislative intent was to stop the delegation of the power of eminent domain based upon the type of entity formed and base it instead upon the purpose served. Similarly, while neither the Arkansas Business Corporation Act nor the Arkansas Nonprofit Corporation Act confer any inherent power of eminent domain upon corporations created thereunder, such corporations may acquire the power as a result of the purpose served. To illustrate, Ark. Stat. Ann. § 35-210 confers the power of eminent domain on any type of corporation providing telephone and telegraph services, Ark. Stat. Ann. § 35-301 confers the power on a corporation providing electricity. Ark. Stat. Ann. § 35-601 confers the power on companies which develop or convey petroleum or natural gas.

We hold that the corporation formed under provisions of the Rural Development Authority Act and organized for the purpose of supplying water to municipalities has the power of eminent domain. The remaining issue is whether this multi-use water supply project is “organized for the purpose of supplying any town .... with water.” See Ark. Stat. Ann. § 35-401.

It is undisputed that the primary purpose of this project is to supply the municipalities of Magnolia, Taylor, Waldo, Emerson and McNeil with water. The initial county ordinance, 83-1, recites that the water supply in the county is by wells, that those wells are being depleted and that a water supply lake is needed as a new source of water. The ordinance also provides that a decision on the location of the proposed lake site is to be made solely on the basis of suitability for public water supply purposes. The City of Magnolia was allowed to intervene upon its contention that the corporation was acting on behalf of the city in an effort to construct a water supply lake. Selwyn Whitehead, the chairman of the Magnolia Water Commission, testified that the project is for a much needed water supply. Walker Moore, the Mayor of Magnolia, testified that the project is for water supply.

The proposed large lake will obviously provide incidental benefits, such as flood control and recreation, but the only proof is that the main purpose of the project is for water supply to the municipalities. We hold that the corporation was organized for the purpose of supplying water to the municipalities and, for that purpose, has the power of eminent domain.

Reversed.

Hickman, J., and Hollingsworth, J., dissent.

Darrell Hickman, Justice,

dissenting. I can only respectfully suggest that the majority decision and the basis for it takes considerable liberties with the facts and the existing law.

This is a case concerning the power of eminent domain. The majority’s decision is unusual, because it concludes the power exists because the “[principal proof, is that the main purpose of the project is for water supply to municipalities.” That statement is contrary to facts found by the trial court and irrelevant to the law of eminent domain.

The issue addressed by the majority was the only issue addressed by the trial court and that is whether the authority exists for the appellants to condemn private property. If the express statutory authority exists, then the appellants can condemn property; if not, they cannot. The trial court quite correctly identified the precise issue as being one of the express purpose of the condemning authority — not the main purpose. Based on the facts presented, the trial court found the purpose to be exactly what it was said to be in all the documents, a lake project “for the purpose of ... a multiuse recreation, water supply and flood control lake. That is what all the documents said, and that is what the trial court found. The majority ignores this finding and finds instead the “main purpose” is to supply water to the City of Magnolia, Arkansas.

The trial court was presented with very little evidence. The documentary evidence consisted of a county ordinance passed by the Columbia County Quorum Court, passed on August 1, 1983, an agreement between Columbia County and five Columbia County cities signed on the 30th of August, 1983, a sample ballot and a county ordinance passed September 12, 1983. According to the abstract of the record, three witnesses testified: R. W. Henderson, the county judge; Selwyn Whitehead, the chairman of the Magnolia Water Commission and the Columbia County Rural Development Authority; and Walker Moore, the acting mayor of the City of Magnolia.

The county judge testified that the purpose of the project was that recited in the county ordinance. He said that “the interlocal agreement was for money alone. It was for the lake project, but they . . . the money and the Interlocal Agreement, we had to have that because the towns couldn’t take their tax money and put it in the lake.”

Whitehead only testified that the lake project was for a “much needed water supply” for Magnolia and Columbia County. He said it “benefited the five cities.” Moore, the acting mayor of Magnolia, simply said Magnolia needed a future water supply.

In examining the majority’s finding that the “principal proof was that the main purpose” of this.lake project was for the municipalities, it is important to note that the original county ordinance did not even mention the cities that joined the project. The Ordinance said:

The water supply for Columbia County (hereinafter County) is currently provided by wells; it is projected that the continued use of such wells will deplete same; there is demonstrated in the County a present and future need for a readily available source of water for residential and industrial use; the cities of the County do not have available to them water related recreational activities upon any lake or river in the County; there is a need for improvement of county services and a need for the acquisition, construction, equipping, and maintaining of a multiuse recreation, water supply and flood control lake (hereinafter referred to as the “project”) in the County and a need for a stable source of revenue to finance such local government services; ....

The majority opinion recites: “It is undisputed that the primary purpose of this project is to supply the municipalities of Magnolia, Taylor, Waldo, Emerson and McNeil with water.” That is exactly what was disputed at the trial and on appeal. In fact, the trial court denied a motion, after entering his decree, to amend the decree to say this fact was undisputed and the primary purpose was for water supply to Magnolia.

All of the documents introduced referred to a multipurpose project, as found by the trial court. No witness testified that the reason or purpose of the condemnation was to the contrary. The cities will use the water, but this is not the cities’ action to condemn land to supply water. This is an action by the Columbia County Rural Development Authority. One purpose of the several mentioned is for obtaining money for improvements of “county services” and to raise money for these services. What are they? Can cities condemn land to pay for county services? Nowhere in the record is one word of evidence of what the main purpose of the project is. That is simply a conclusion or assumption by the majority.

The trial court made a finding that the purpose was exactly what it was said to be, a multipurpose one for recreation, flood control and water supply. That finding was based on evidence, not speculation. In order to overrule that finding, we must say the trial court was clearly erroneous in his finding. Loveless v. May, 278 Ark. 127, 644 S.W.2d 61 (1983); ARCP Rule 52. The majority opinion says nothing of why the trial court was clearly wrong in its fact finding. We cannot draw a conclusion for no justifiable reason. That is only one of the problems with the decision in this case, albeit a serious one. The other concerns the law.

Because this is an eminent domain case, we cannot presume or imply any authority that is not expressly and clearly granted in legislation. That is because the power is being used to invade the right of property which is before and higher than constitutional sanctions. City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967). When the appellants cannot point to express and clear legislative authority to condemn land for the purpose asserted, it lacks that authority. It is conceded that Columbia County Rural Development Authority had not express power of eminent domain because that authority was expressly taken away from it by the legislature in Act 75 of 1967. That is about as clear an expression of legislative intent as is possible. But the appellants argue that either of the appellants can condemn under an Arkansas statute that allows “corporations organized for the purpose of supplying any . . .city . . .with water. . .” Ark. Stat. Ann. § 35-401.

The trial court quite properly held that the appellants were not organized for the purpose of supplying water for cities but for building a lake for three purposes: recreation, water supply and flood control. The cities did not join in this effort until after the county created the Columbia County Rural Development Authority and declared its purpose. This was a county project. The cities acknowledged the multi-use purpose in this agreement and there is not any evidence to suggest private property would be condemned only because inhabitants of cities needed water. The City of Magnolia intervened in this suit, but its effort to condemn is tied exclusively to the complaint of the Columbia County Rural Development Authority. Its purpose for condemning is the same — for recreation, flood control, and water supply and for county services — not just for a city water supply.

In a long line of cases, we have set forth an unmistakable standard to apply to legislation in eminent domain cases. In City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W.2d 30 (1958), we said:

The authority for the taking of private property for public use should be clearly expressed and the statute strictly construed .... Statutes which relate to the power of eminent doman should be strictly construed in favor of the landowner largely because they are in derogation of the common right. This rule is particularly applicable where there is an alleged delegation of power. (Italics supplied.)

Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983); Young v. Energy Transportation Systems, Inc., 278 Ark. 146, 644 S.W.2d 266 (1983); Loyd v. Southwest Arkansas Utilities Corp., 264 Ark. 818, 580 S.W.2d 935 (1979); City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967); City of Osceola v. Whistle, 241 Ark. 604, 410 S.W.2d 393 (1966); Hampton v. Arkansas State Game and Fish Comm., 218 Ark. 757, 238 S.W.2d 950 (1951). When the legislature says a city can condemn for a water supply, it does not mean for any other reason.

So, rather than liberally construing the law, as the majority does, we are duty bound to take exactly the opposite approach. The majority finds it significant that the legislature did not repeal Ark. Stat. Ann. § 35-401 when it abolished the authority of the Rural Development Authority’s power of eminent, domain. I find it neither significant nor relevant. The majority’s finding suggests the legislature considered taking away the rights of the people in cities to water and decided not to! A city has no authority, express or implied, to condemn land for flood control or for a recreational lake, yet that is the holding of the majority. If the legislature wants cities to have the authority to condemn land to build multipurpose lakes, it will say so. So far it has not and we cannot read that into law nor do so according to our cases.

Concerning the majority’s finding that the “principal evidence is that the main purpose of the lake project is for the cities,” I submit that even if that were a relevant legal observation, where is that evidence? Did anyone testify that the cities proposed this project? Did anyone testify that the main purpose of the lake was a water source for any city? Is there any evidence, documentary or testamentary, that contradicts the documentary stated purposes of the lake project? The answer to all questions is no.

What we have is not a question of whether it would be nice for the City of Magnolia to have another source of water; no doubt it would be. What we have is whether the right of property can be taken away on the flimsy grounds suggested by the majority. We do not know what the “main” purpose of the lake project is. We only know that every reference to purpose was that it was for several, not one. To find more is to simply speculate.

With all due respect, the majority has simply taken a liberty with the evidence and assumed or drawn a conclusion that is not warranted or justified and ignored the law.

I think it is significant that the majority opinion does not mention what is really at issue in this case and that is the constitutional right of property. Eminent domain means the taking of private property by the state. What is the constitutional value of that property right? “The right of property is before and higher than any constitutional sanction.” Art. 2 § 22 Ark. Const. (1874). But not according to the majority opinion.

I would affirm the decree.

Hollingsworth, J., joins in this dissent.


author:
Robert H. Dudley, Justice.
      Darrell Hickman, Justice. John I. Purtle, Justice, Robert H. Dudley, Justice,

text:
    Terry LOVELL, Mike FLUIATT, David BRITTON, Rick FIVEKILLER, Randall SIMMERMON, Sally BASWELL, Roger CARSON, Mike CORKRAN and P.W. HAWKINS v. STATE of Arkansas
    CR 84-86
    678 S.W.2d 318
    Supreme Court of Arkansas
    Opinion delivered October 22, 1984
    [Supplemental Opinion on Denial of Rehearing December 21, 1984.]

      Joel W. Price, for appellants.

      Steve Clark, Att’y Gen., by: Randel Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The nine appellants were each found guilty of violating the Omnibus DWI Act of 1983. The sentences of appellants Carson, Corkran, Fluiatt and Hawkins were enhanced because each had a prior conviction. The other appellants were sentenced as first offenders. These appeals come to this court under Rule 29(l)(c) and are consolidated pursuant to Rule 3, A.R.App.Pro. because common questions of law are involved. We affirm the convictions of those appellants sentenced as first offenders but reverse the convictions of those given enhanced sentences.

Over the objections of appellants Carson, Corkran, Fluiatt and Hawkins, the trial court admitted certificates of prior convictions into evidence and, on the basis of the prior conviction documents, punishment was enhanced. None of the documents reflect that appellants were represented by counsel at their prior trials. The ruling was erroneous. A prior conviction cannot be used collaterally to impose enhanced punishment unless the misdemeanant was represented by counsel or validly waived counsel. Baldasar v. Illinois, 446 U.S. 222 (1980); State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). Waiver of counsel may not be presumed from a silent record. McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974). Accordingly, we reverse and remand the cases of these four appellants.

Since appellants Carson, Corkran, Fluiatt and Hawkins will be retried, we will also address another poin t of this appeal which will again arise at their new trials. These four appellants’ prior convictions were for violating the older statutes relating to driving while under the influence of intoxicants, Ark. Stat. Ann. §§ 75-1027 through 1031.1. Under these older statutes, there was a presumption that one was under the influence of intoxicants if his blood alcohol content was. 10% or more. The 1983 statute has made driving with a blood alcohol content of. 10% or more illegal, per se. Appellants argue that there is a difference between driving while under the influence of intoxicants and driving while intoxicated, and that a prior conviction for driving while under the influence should not be counted as a prior offense for driving while intoxicated. There is no merit in the argument. Both laws declare that drivers with a blood alcohol content of. 10% or more constitute a threat to public safety. The legislative intent under the Omnibus D WI Act of 1983 was to enhance penalties by using convictions under the older act. § 75-2501(b) states in pertinent part:

... all pleas of guilty and nolo contendere and all findings of guilty of driving while intoxicated within three (3) years prior to the effective date of this Act shall be counted in determining the number of prior offenses for the purposes of enhancing the penalties provided by this Act. . . .

The above part of the act uses the word intoxicated rather than under the influence. However, § 75-2502 (a) defines intoxicated as “influenced or affected by the ingestion of alcohol . . .” The emergency clause also demonstrates the legislative intent;

It is hereby found and determined by the Seventy-Fourth General Assembly that the act of driving a motor vehicle while under the influence of intoxicating alcoholic beverages or drugs constitutes a serious and immediate threat to the safety of all citizens of the State . . . (emphasis added.).

Therefore, upon retrial, previous convictions for driving while under the influence of intoxicants may be used as prior offenses for enhancement purposes under the 1983 act.

All appellants raise other points of appeal. They contend that the failure of the state to preserve samples of their breath tests for later testing constitutes a denial of their right to due process. This argument also is without merit. The Due Process Clause of the Fourteénth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce breath analysis tests at trial. California v. Trombetta, _ U.S. _, 104 S.Ct. 2528 (June 11,1984). Appellants additionally contend that the failure to preserve the samples denied them their Sixth Amendment confrontation rights. However, since neither citation of authority nor convincing argument is given and since it is not apparent without further research that the point is well taken, we do not consider the issue. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Appellants next contend that the Omnibus DWI Act of 1983, Act 549, Ark. Stat. Ann. §§ 75-2501 through 75-2514, is unconstitutional on its face and as applied. They make four arguments of unconstitutionality. First, they argue that § 75-2503(b) establishes a conclusive presumption of guilt because it provides that it is unlawful for any person to drive with .10% or more by weight of alcohol in his blood.

The subsection does not lessen the state’s burden of proof. Each defendant is presumed innocent until the state proves beyond a reasonable doubt that he is guilty of committing the prohibited act of driving with . 10% or more alcoholic content in the blood. The state has a rational basis in protecting public safety and to that end the General Assembly has determined that a driver with a blood alcohol content of .10% or more constitutes a serious and immediate threat to the safety of all citizens. This act is simply a reasonable means of protecting the public safety. The appellants were innocent until the state proved beyond a reasonable doubt that the appellants were driving and that their blood alcohol measurement was . 10% or more. People v. Ziltz, 98 Ill. 2d 38, 455 N.E.2d 70 (1983).

Second, appellants contend that the act is unconstitutional because the .10% standard of § 3 (b) is vague. Both the Fourteenth Amendment to the United States Constitution and article 2, section 8 of the Arkansas Constitution declare that no person shall be deprived of life, liberty or property without due process of law. It has been recognized for over 80 years that due process requires some level of definiteness in criminal statutes. Note, Due Process Requirements of Definiteness in Statutes, 62 Harv. L. Rev. 77, fn. 2 (1948). Due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. State v. Bryant, 219 Ark. 313, 241 S.W.2d 473 (1951); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 68-69 (1960); Note, Due Process Requirements of Definiteness in Statutes, 62 Harv. L. Rev. 77-78 (1948).

The subsection setting .10% as the standard meets both requirements. First, it gives a fair warning of the prohibited conduct. Due process requires only fair warning, not actual notice.

Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.

McBoyle v. United States, 283 U.S. 25, 27 (1931).

The standard is the same in Arkansas. Trice v. City of Pine Bluff, 279 Ark. 125, 129, 649 S.W.2d 179 (1983). The subsection fairly warns a person of ordinary intelligence that he is in jeopardy of violating the law if he drives a vehicle after consuming a quantity of alcohol. Second, a clear standard is set for police enforcement. In addressing the same issue, the California Supreme Court stated:

. . ,[T]he statute could not be more precise as a standard for law-enforcement. (Freund, The Use of Indefinite Terms in Statutes (1921) 30 Yale L.J. 437, 437.) It gives no discretion whatever to the police, and thus is not susceptible of arbitrary enforcement. . . . Indeed, the very precision of the standards assures the statute’s validity in this respect. (Cf. Note, The Void-for-Vagueness Doctrine in the Supreme Court, (1960) 109 U.Pa.L.Rev. 67, 90-91.) (citation omitted)

Burg v. Municipal Court, 673 P.2d 732, 740 (Cal. 1983).

Appellants’ third argument is that the act is an unconstitutional violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and Article 2, Sections 8 and 10 of the Constitution of Arkansas because the .10% standard of § 3 (b) is arbitrary, capricious and unreasonable. They contend that there is no legal or scientific basis for the legislative determination that .10% blood alcohol content constitutes a dangerous level of alcohol.

The state has broad police powers to protect its citizens from real dangers. Driving while intoxicated is such a real danger. South Dakota v. Neville, _ U.S. _, 74 L. Ed. 2d 748 (1983). The only issue is whether driving with a blood alcohol measurement of .10% or more scientifically bears a reasonable relationship to the legitimate state interest in protecting the safety of its citizens. The California Supreme Court has clearly answered the question:

. . . Scientific evidence and sad experience demonstrate that any driver with 0.10 percent blood alcohol is a threat to the safety of the public and to himself. (Gray, Attorney’s Textbook of Medicine (3d ed. 1983) §§ 133.52-133.52(3) [all individuals suffer impairment at 0.10 percent blood-alcohol content]; State v. Franco, supra, 96 Wash. 2d 816, 639 P.2d 1320, 1322 [abundant scientific evidence that at 0.10 percent blood alcohol all persons are significantly affected and will have lost at least one-quarter of their normal driving ability]; People v. Lewis (1983) 148 Cal. App. 3d 614, 617, 196 Cal. Rptr. 161; People v. Schrieber (1975) 45 Cal. App. 3d 917, 924, 119 Cal. Rptr. 812; People v. Lachman (1972) 23 Cal. App. 3d 1094, 1098, 100 Cal. Rptr. 710; People v. Perkins (1981) 126 Cal. App. 3d Supp. 12, 21, 179 Cal. Rptr. 431; Greaves v. State, supra, 528 P.2d 805, 807; Coxe v. State (Del. 1971) 281 A.2d 606, 607; Oversight into the Administration of State and Local Court Adjudication of Driving While Intoxicated: Hearings Before Subcom. on Courts of Sen. Com. on the Judiciary, 97th Cong., 1st Sess. (1981) Serial No. J-97-79, pp. 99-101 [hereinafter Hearings Before Subcom. on Courts] [statement of Dr. Roger P. Maickel, noting that typically vision impairment begins at 0.03-0.08 percent blood alcohol and becomes significant in all subjects at 0.10 percent; reaction-time impairment begins at 0.04 percent; judgment of distance, dimensions and speed at 0.08 percent; coordination and memory at 0.10 percent].) Section 23152, subdivision (b), represents a legislative determination to that effect. (Accord, Greaves v. State, supra, 528 P.2d 805, 807; Coxe v. State, supra, 281 A.2d 606, 607; State v. Gerdes, supra, 253 N.W.2d 335, 335-336; State v. Clark (1979) 286 Or. 33, 593 P.2d 123, 126; State v. Basinger, supra, (1976) 30 N.C. App. 45, 226 S.E.2d 216, 218; People v. Fox (N.Y. Just. Ct. 1976) 87 Misc. 2d 210, 382 N.Y.S. 2d 921, 925-926; cf. Erickson v. Municipality of Anchorage (Alaska App. 1983) 662 P.2d 963, 969-970, fn. 3.) Indeed, the available scientific information would support an even lower figure. (Hurst, Estimating the Effectiveness of Blood Alcohol Limits (1970) 1 Behav. Research Highway Safety 87; Ross, Deterring the Drinking Driver (1982) pp. 2-3; Jones & Joscelyn, Alcohol and Highway Safety 1978, op. cit. supra, pp. 35-50; Hearings Before Subcom. on Courts, supra, pp. 99-101; Gray, Attorneys’ Textbook of Medicine (3d ed. 1983) §§ 133.52-133.52(3). At least two states and several foreign countries have established standards between O. 05 percent and 0.08 percent. We have no difficulty concluding that the 0.10 percent figure fixed by section 23152, subdivision (b), is rationally related to exercise of the state’s legitimate police power. (Roberts v. State, supra, 329 So.2d 296, 297.)

The .10% standard is reasonable and bears a direct relationship to the state’s interest in protecting its citizens.

Appellants’ fourth argument is that the act unconstitutionally allows the police officer, rather than the prosecuting attorney, to file the charge. On the misdemeanor cases before us on these appeals, the argument is without merit. However, we issue a caveat that the argument may well be meritorious in felony cases.

Article 2, Section 8 of the Constitution of Arkansas provides that no one shall be held to answer a criminal charge unless on the presentment or indictment of a grand jury except for those cases which the General Assembly shall make cognizable by Justices of the peace, or courts of similar jurisdiction. Justice of the peace courts and similar jurisdiction courts have jurisdiction only of misdemeanors. See Ark. Stat. Ann. § 22-709, 22-724 and § 22-801 (Repl. 1962). Amendment 21 provides that offense which had to be filed by grand jury indictment may now be filed by an information by the prosecuting attorney.

Delivered December 21, 1984

Since all appellants are charged with misdemeanors and since only felonies are required to be brought by indictment or information, the act, as applied to these appellants, does not violate the Constitution of Arkansas.

Appellants also argue that the act constitutes an unlawful delegation of judicial power to the administrative branch. The argument is predicated upon the act giving the Arkansas Department of Health the authority to select and approve the chemical tests for blood alcohol content.

The mere fact that the Department of Health selects the method of testing does not delegate to it the power to find one guilty. State v. Melcher, 655 P.2d 1169 (Wash. App. 1983). The sole authority to find a defendant guilty of violating this act remains with the judicial branch.

The appellants filed motions asking that their sentences be suspended. The trial court ruled that he did not have the authority to suspend their sentences since the sentencing provisions of the act are mandatory. §§ 75-2504 and 75-2505. Appellants contend that a general statute authorizes the trial court to suspend or probate sentences. See Ark. Stat. Ann. Title 41, Chapter 12 (Repl. 1977 and Supp. 1983). The trial court was correct because where a special act applies to a particular case, it excludes the operation of a general act upon the same subject. Saline County v. Kinkead, 84 Ark. 329, 105 S.W. 581 (1907).

The appellants do not argue, and we do not consider, the constitutionality of the provision stating that judges may not suspend execution of sentences.

Affirmed in part; reversed in part.

Supplemental Opinion on Denial of Rehearing

Darrell Hickman, Justice.

The trial court held the sentencing provision of the Omnibus DWI Act to be mandatory; that is, where imprisonment is required, such a sentence cannot be reduced or suspended by the judge. We unanimously upheld this decision, following the clear language of the act which reads:

75-2504 Imprisonment for first and subsequent offenses.
(a) Any person who pleads guilty, nolo contendere or is found guilty of violating Section 3 [§ 75-2503] of this Act may, for a first offense, be imprisoned for no less than twenty-four (24) hours and no more than one (1) year (except that the court may order public service in lieu of jail and in such instance the court shall include the reasons therefor in its written order of judgment).
(b) Any person who pleads guilty, nolo contendere or is found guilty of violating Section 3 of this Act shall be imprisoned:

(1) for no less than seven (7) days and no more than one (1) year for the second offense occurring within three (3) years of the first offense;

(2) for no less than ninety (90) days nor more than one (1) year for the third offense occurring within three (3) years of the first offense;

(3) any person who pleads guilty, nolo contendere, or is found guilty of violating Section 3 of this Act for the fourth or subsequent offense occurring within three (3) years of the first offense shall be guilty of a felony punishable by imprisonment for at least one (1) year but not more than six (6) years. (Italics supplied.)

On rehearing some of our members have changed their minds. There could be nothing more plain in the legislative intent that the purpose of the act is to take from the judges certain discretionary powers and to impose mandatory sentences. Paragraph (a) uses the word “may” and undoubtedly we all accept the meaning of that word to mean “may;” paragraph (b) says “shall be imprisoned” and that statement is just as unequivocal.

One reason for the act is that the judges have not enforced the prior law, even though parts of it were mandatory. Those provisions were often avoided by allowing a reduction of a charge, or jailing on weekends or at the convenience of the defendant.

In this act, the power to reduce a charge was taken from the judges and imprisonment was made mandatory. Section 75-2505 states that a person “shall be fined.” Section 75-2506 states that a court “shall not pronounce sentence until receipt of the presentence report.” Section 75-2509 states [hjereafter, no circuit judge nor municipal judge may utilize the provisions of Act 346 of 175 in instances where the defendant is charged with violating Section 3 [§ 75-2503] of this Act.” Section 75-2510 (a) states [e]very magistrate or judge of a court shall keep or cause to be kept a record of every violation of this Act presented to said court, and shall keep a record of every official action by said court. . . .” Section 75-2510 (b) states “every said magistrate of the court or clerk of the court shall prepare and immediately forward to the Office of Driver Services an abstract of the record of said court. . . .” Section 75-2511 states “[u]pon arraignment the judge shall issue such person a temporary permit to expire on the date of the trial.” Section 75-2512 states a person who drives after suspension or revocation of their license “shall be imprisoned for ten (10) days.” (Italics supplied.)

The drafters of the criminal code recognized that there may be statutes later enacted which have their own penal provisions, unaffected by the criminal code. Ark. Stat. Ann. § 41-901 (1) (e) (Repl. 1977), which classifies felonies and their respective punishments, expressly deals with this situation and its commentary states: “Subsection (1) (e) would also apply if a future legislature, either intentionally or accidentally, enacts a felony statute that includes its own penal provision.” (Italics supplied.) The legislature did not have to even refer to the criminal code to make certain sentences mandatory. The Omnibus DWI Act can stand alone in this regard.

Could a law be more plain that the legislature wanted it unmistakeably clear certain things were mandatory? The legislature, not the courts, decides what is a crime and, within limits, what a sentence will be. So long as those sentences are not unconstitutional for some reason, it is our duty to enforce those laws. To do otherwise in this case would be to subvert a clear prerogative of the legislature.

Hubbell, C.J., Purtle and Dudley, JJ., concur.

John I. Purtle, Justice,

concurring. I agree with Mr. Justice Dudley’s concurring opinion. However I wish to point out two additional statutes which support his conclusion. Arkansas Stat. Ann. § 41-803 (1) (Supp. 1983) states: “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this Article.” Arkansas Stat. Ann. § 41-1201 (1) (Repl. 1977) states in part: “If a defendant pleads or is found guilty of an offense other than capital murder, murder in the first degree, murder in the second degree, first degree rape, kidnapping or aggravated robbery, the court may suspend imposition of sentence or place the defendant on probation.”

The majority now reads “D.W.I.” into the exceptions. I believe the General Assembly would have changed Ark. Stat. Ann. §§ 41-803 (1) and 41-1201 (1) if there had been an intent to do away with the present sentencing options available to the courts. Therefore, I am of the opinion that the courts should not be legislatively restrained by this court.

The majority correctly quotes from the statute here in question and it clearly states a person found guilty may be imprisoned on a first offense for up to one (1) year. That provision is plainly discretionary.

Robert H. Dudley, Justice,

concurring. I concur in the vote denying a rehearing but, if granted the authority by the court, I would modify the last paragraph of the opinion. Upon reconsideration, I find that that part of the opinion relating to suspension of sentences is incorrect.

Prior to the Omnibus DWI Act of 1983 trial judges .had the authority to suspend imposition of any sentence, see Ark. Stat. Ann. § 41-1201 (Repl. 1977 and Supp. 1983) or to suspend execution of sentence. See Ark. Stat. Ann. § 43-2326 as re-enacted by § 43-2331 (Supp. 1983). The 1983 DWI Act does not expressly repeal the trial judge’s authority to use either of the above cited statutes. Instead, it only eliminates the trial judge’s authority to utilize the First Offender Expungement Act, an act which authorizes the expungement of convictions. See § 9 of the DWI Act, § 75-2509 and the Expungement Act, § 43-1231. Prior to the 1983 DWI Act there was a mandatory sentencing requirement in the DWI laws. See Ark. Stat. Ann. § 75-1029.2 (Repl. 1977). This mandatory sentencing requirement was specifically repealed in Section 19 of the 1983 Act. The new act has no similar statement mandating serving of sentences. Although Section 4(b) of the Omnibus Act, § 75-2504(b), provides that persons found guilty “shall be imprisoned”, this language does not by implication repeal the specific statutory authority of judges to suspend imposition or execution of sentences.


author:
      Steele Hays, Justice.
      John I. Purtle, Justice,

text:
    Willie Davis YOUNG v. STATE of Arkansas
    CR 84-80
    678 S.W.2d 329
    Supreme Court of Arkansas
    Opinion delivered October 22, 1984

      Mark Roberts and Charles R. Padgham, for appellant.

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

Appellant, Willie Davis Young, was charged with the offense of aggravated robbery. There was more than substantial evidence presented to sustain a conviction including the identification of appellant by the two victims of the robbery and a signed written statement by the appellant detailing his perpetration of the crime. The appellant’s only defense was a denial of any knowledge of the robbery and a claim that he had continuously been under the influence of drugs on the day of the robbery. He was tried and convicted, found to be an habitual offender and sentenced to forty years imprisonment. Appellant argues four points for reversal, none of which has merit.

Appellant first argues that the trial court erred in not declaring a mistrial following his appearance before the jury during voir dire in prison garb. After the jury was seated appellant moved for a mistrial. The trial court denied the motion stating that it was not timely, and had it been made earlier the problem could have been corrected. The appellant argues that under Estelle v. Williams, 425 U.S. 501 (1976), the state cannot, consistent with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothing. We refused to find error on this same argument in Holloway, Welch & Campbell v. State, 260 Ark. 250, 539 S.W.2d 435 (1976), where we noted that Estelle found the defendant’s constitutional rights were violated only when he was compelled to wear identifiable prison clothing. In Holloway we found the defendants had waived their right to object as they had twice rejected the trial court’s offer to allow them to change clothes and the record did not reflect the “distinctive” and “identifiable” attire required under Estelle, but only that the defendants were dressed in matching blue trousers and blue shirts.

In this case, the uniform was unquestionably distinctive and the trial court made no offer to the appellant to change clothes, but neither of these distinctions brings this case within the proscription of Estelle. As noted in Holloway, the critical factor in Estelle which brought about a violation of constitutional rights was the compulsion to wear the prison garb. Although Estelle recognized the potentially prejudicial effect of a prison uniform, it did not find the practice inherently prejudicial absent the element of compulsion. The court noted that the judicial focus upon compulsion was due to instances frequently arising where the defendants preferred to appear in prison garments for tactical reasons.

Here, appellant waived his right against being so compelled. The right not to be attired in prison clothes can be waived as occurred in Estelle by failure to object and in Holloway by refusal of the trial court’s offer of civilian clothing. Appellant in this case waived his right by not making his objection at the first opportunity to do so. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976). Appellant made no objection throughout the jury selection process and not until the jury was seated did he object. The trial court was correct in denying the motion on the basis of untimeliness. Additionally, although the appellant argues that he had no other clothes available to him, he made no showing whatsoever that he was forced to wear the prison attire, that a continuance was requested or that any request for other clothes was denied or that any such request was ever made. And as pointed out in Estelle, there was no duty on the part of the trial court to make any inquiry. “Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of the trial judges and counsel in our legal system.” Estelle at 512.

Appellant next argues that the trial court erred in not declaring a mistrial following a statement by one of the state’s witnesses concerning an offer by the defendant to enter a plea agreement. At the end of the direct examination of the manager of the drugstore that was robbed, the following exchange took place:

Q. Mr. West, is the man that robbed you with this pistol seated in this courtroom?
A. Yes, he is.
Q. Would you walk over to where he is and point him out for the jury?
A. This gentleman here.
Q. With the bandage on his foot?
A. Yes, sir.
Q. Okay, thank you. Take your seat back. There’s no doubt in your mind?
A. No doubt in my mind.
Q. Okay.
A. Plus his defense counsellors came down to the store and wanted to plea bargain —
MR. ROBERTS: Objection, Your Honor.
THE COURT: The objection will be sustained.
Q. Let’s don’t go any further with that.
THE COURT: Please disregard anything about plea bargaining. It has no place in this trial.

The appellant argues that under our case law and Ark. Unif. R. Evid. R. 410, making evidence of withdrawn pleas and offers inadmissible, the trial court erred by not granting a mistrial. Our case law and the law generally, is clear that when such a reference is made by the trial court or the prosecutor, the prejudice is difficult to cure. Wilson v. State, 253 Ark. 19, 484 S.W.2d 82 (1972); Weinsteins’ Evidence, § 410-03, p. 410-31-32. There is less certainty however when a statement referring to a plea offer is made inadvertently by a witness who bears no official relationship to the prosecution.

Knowing the primary purpose behind this rule sheds some light on the appropriate course to follow. Weinstein, supra, states: In the case of offers to plea, the soundest rationale is similar to that under Rule 408, dealing with offers to compromise — that is to say, the criminal prosecution system depends on pleas of guilty to dispose of the bulk of cases and frank discussion of such pleas should not be discouraged. § 410-01, p. 410-19. In U.S. v. Grant, 622 F.2d 308 (8th Cir. 1980) the court notes the goal of Rule 410 as stated by the Advisory Commission on the Federal Rules of Criminal Procedure: “. . . to permit the unrestrained candor which produces effective plea discussion between the attorney for the government and the attorney for the defendant or the defendant when acting pro se.” Weinstein also says: “Where government counsel or the trial court deliberately interjects information about the existence of the withdrawn plea the prejudice would seem to be incurable. The defendant, in view of the clarity of Rule 410, is in effect deliberately being tried by means declared to be unfair. If the information is deliberately elicited by the government attorney or relied upon in his argument there is thus adequate basis for a new trial.” § 410-03, p. 410-31-32.

The primary reasons for the rule then, lose much of their force when the statement is an inadvertent one by a witness. The purposes of encouraging candor and confidence in plea negotiations and preventing the defendant from being deliberately tried by unfair means will not be undermined by such remarks. While it is desirable to protect the plea bargaining process by the avoidance of prejudice to the defendant from such statements, the drastic remedy of a mistrial may be an inappropriate remedy for the curing of any prejudice that might occur. Rather, the question in most cases would more appropriately be left to the discretion of the trial court. Weinstein states: “Unlike matters of widespread knowledge — such as the existence of liability insurance — the probability of an inadvertent or unintentional disclosure of the withdrawn plea by an unsuspecting witness is not significant. Nevertheless, the automatic retrial should not be granted if in fact it is perfectly clear the disclosure was inadvertent and reference to the plea did not affect the verdicts.” § 410-03, p. 410-32. If it is determined then that the remark was inadvertent, and limited in its prej udicial effect, the trial court should admonish the j ury to disregard the testimony, the traditional procedure to cure any prejudice that occurs as the result of a nonresponsive answer and potentially prejudicial and inadmissible testimony in general. Queary v. State, 259 Ark. 123, 531 S.W.2d 485 (1976); Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978); Roach v. State, 255 Ark. 773, 503 S.W.2d 467 (1973). We said in Queary, "The law is that when a witness, in answer to a proper question, gives a nonresponsive answer stating matter that is incompetent and inadmissible as evidence, the trial court, on motion, should strike out the answer or as much of it as is improper, and direct the jury to disregard it as evidence in the case.”

In this case, the reference to plea bargaining was clearly inadvertent, unsolicited and made by a lay witness. The statement related by the witness did not even refer to a traditional plea bargaining situation between the prosecutor and the defendant or his attorney, but rather an exchange between the defense counsel and a lay person where there would not be the expectation on the part of the defendant for the security granted by the rule in the official plea negotiations. The reference was short, the witness cut off, and the jury immediately and clearly admonished by the trial court to disregard the testimony. There is no requirement for a mistrial in this situation and the matter was properly within the discretion of the trial court. Under the circumstances of this case, there was no error in denying the motion for a mistrial and any prejudice that might have occurred was cured by the trial court’s admonition to the jury.

Appellant argues for his third point that the trial court erred in not declaring a mistrial following statements he made during cross-examination concerning the length of the sentence he would receive. The sentencing range he made reference to was that which he would be facing as an habitual offender. Appellant argues the statement alerted the jury prematurely to his habitual offender status and violated the structure of the sentencing procedure under Ark. Stat. Ann. § 41-1005 for habitual offenders and thereby denied him the right to a fair and impartial trial. The point was not timely raised and will not be considered on review. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

As his last point appellant argues that an instruction on robbery should have been given as it is a lesser included offense of aggravated robbery and based on the evidence at trial it is clear that the jury could have found the appellant guilty of robbery. Appellant has misstated a conclusion of the facts in this case and the law. In Lovelace v. State, 276 Ark. 463, 637 S.W.2d 548 (1983) on a virtually identical set of facts the appellant raised the same argument which we rejected. We noted that there was no doubt from the evidence at the trial that a pistol was used in the commission of the offense. We cited Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1983) and said that if there is any evidence to support the giving of the instruction on the lesser included offense it must be given, but if there is no rational basis for acquitting the appellant of aggravated robbery and convicting him of the lesser offense of robbery, the lesser instruction need not be given. We found no rational basis for the lesser included offense because of the uncontrovertible evidence that a gun was used in the robbery. We said, “The appellant was guilty of aggravated robbery or nothing at all. Therefore it was not error to refuse to instruct on the lesser included offense.” The same is true in this case. The employment of a gun in the robbery was never denied, challenged or controverted. Appellant’s only defense was a denial of any memory of the crime and that he was under the influence of drugs on the day of the robbery. As in Lovelace, the appellant here was either guilty of aggravated robbery or nothing at all. As there was no rational basis for giving the instruction on the lesser included offense of robbery, there was no error in the court’s denial of the appellant’s requested instruction.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion surgarcoats two important issues: 1) the appellant was compelled to stand trial before a jury in prison garb; and 2) the state’s chief witness “volunteered” a statement about the defense attorney’s coming to see him and offering to plea bargain.

First I will discuss the matter of the appellant being compelled to wear prison clothing before he was convicted on the charge being tried. The clothing was a bright orange jumpsuit with a target on the back and the word “jail” written across the target. Before any witness was called or evidence admitted the appellant moved for a mistrial because of the prison clothing. The court denied the motion because it was not timely. It was established that the appellant’s civilian clothing could not be found by the sheriff. The appellant had no choice but to wear the only clothing furnished him. Surely the trial court, the prosecuting attorney, or the sheriff was aware that a trial was coming up and that it would be illegal to force the prisoner to stand trial in prison garb. Estelle v. Williams, 425 U.S. 501 (1976). A person in the appellant’s position was not able to change the situation. Only those charged with the duty of giving the appellant a fair and impartial trial were in a position to prevent such an occurrence. In my opinion it was not ineffective assistance of counsel to anticipate that the appellant’s constitutional rights would be protected. The fact that counsel waited a few minutes or failed to notice prior to the start of the trial should not prevent the assertion of the appellant’s right to be tried in civil clothing. The appellant was compelled to go through the entire trial wearing prison clothing. It was a constant reminder to the jury that they were trying a man who was already a prisoner. A suspect who is given his rights warning may cease to talk at any point and claim his Fifth Amendment right to refrain from talking further. Likewise a prisoner should be allowed to elect to wear civilian clothing at any time during the trial.

Next I wish to point out the prejudice of the state’s chief witness volunteering to mention the appellant’s efforts to work out a plea bargain. The prosecutor asked his chief witness if the man who robbed him was in the room and the answer was in the affirmative. The exact questions and answers are reproduced in the majority opinion. If the matter had been planned it could not have worked better. Therefore, this court now condones the perfect manner in which to inject improper and prejudicial material into the trial without fear of being forced to retry the case in a fair and impartial manner. The court admonished the jury to disregard the statement and this court approves such procedure as a cure for the error. On or about this same date we found prejudicial a statement of a trial judge that certain evidence was very suspect. Tandy Corporation v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). To affirm one and reverse the other is inconsistent, in my opinion. Our Uniform Rule of Evidence 410 specifically prohibits an offer to plea bargain from being introduced in civil or criminal cases. The purpose of this rule and similar rules is to promote candor between the parties and to enhance the chances of successful settlement negotiations. Mo. Pac. R.R. v. Arkansas Sheriff’s Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983); Cantlin v. Pavlovich, 265 Ark. 654, 580 S.W.2d 190 (1979); U.S. v. Grant, 622 F.2d 308 (8th Cir. 1980). I agree with the majority that Wilson v. State, 253 Ark. 10, 484 S.W.2d 82 (1972) declares that reference by the prosecuting attorney to an offer to plea bargain is highly prejudicial. In Wilson the testimony relating to a plea bargain was given by the prosecuting witness. In reversing the verdict this court stated: “Plea bargaining is alien to jury trials and many reasons should be obvious why offers and counteroffers in plea bargaining have no place whatever in the evidence at jury trials.”

In view of the express provisions of Rule 410 and prior precedent this case should be reversed and remanded for a new trial.

      Rule 410. Withdrawn pleas and offers. — Evidence of a plea later withdrawn, of guilty or admission of the charge, or nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.