author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    Richard E. HABERMAN v. John LISLE and Lisle Law Firm, P.C., and City of Fayetteville, Arkansas
    93-1363
    884 S.W.2d 262
    Supreme Court of Arkansas
    Substituted Opinion on Denial of Rehearing October 3, 1994.

      James N. McCord, Estes, Estes & Gramling, and Kincaid, Horne, & Trumbo, for appellant.

      Roy & Lambert, by: James M. Roy, Jr., for appellees.

       Original opinion delivered July 18, 1994. Dudley, Hays, and Brown, JJ., would gram rehearing.

   Donald L. Corbin, Justice.

Appellees, John Lisle and the Lisle Law Firm, P.C., (Lisle) have moved to dismiss appellant’s appeal of a class action settlement order approving attorney’s fees and costs. As appellant, Richard E. Haberman, lacks standing to pursue this appeal, we grant Lisle’s motion to dismiss appellant’s appeal.

This case originated with a class action suit by payers of a sales tax collected by the City of Fayetteville (City). The class, as certified by the chancery court, sued the City, Arvest Trust Company, N.A., and Fayetteville School District No. 1. The result of that case was appealed to this court, and we reversed and remanded determining that the sales tax was an illegal exaction. Hasha v. City of Fayetteville, 311 Ark. 460, 845 S.W.2d 500 (1993). Subsequent to our decision, the parties entered into a settlement agreement which was approved on May 12, 1993. by the Washington County chancellor after public notice and a hearing.

The settlement order stated that Lisle’s attorney’s fees and expenses for representing the class would be paid by the City out of the City’s general fund, with the amount to be determined after a petition for fees and a hearing. All plaintiffs and defendants agreed not to appeal the settlement order or the subsequent award of attorney’s fees and costs. No notice of appeal was filed after the entry of the final order and judgment on May 12, 1993, which approved the settlement and set forth the procedure for approval of attorney’s fees. All notice requirements of Rule 23 of Arkansas Rules of Civil Procedure were complied with in this case. A fee application petition was filed and a hearing was set on October 12, 1993. Haberman did not appear at this hearing. The chancellor placed into evidence a letter he had received from Haberman dated April 28, 1993, objecting to a percentage fee and urging an hourly rate fee to be paid to Lisle. The chancellor subsequently entered an order on October 21, 1993, approving a percentage fee. Haberman filed an appeal to the fee order and motion to supersede the judgment on October 29, 1993. The City, as part of the settlement order, paid the attorney’s fees in full by February 1994.

Haberman, as a citizen of the City during the time in which the illegal tax was collected, appealed the approval of attorney’s fees and costs. Haberman, now a former citizen of Fayetteville, argues he was harmed by the loss in general funds as those funds could be used for capital improvements to the benefit of taxpayers. Lisle, designated as an appellee by Haberman, moves to dismiss this appeal for the following reasons:

(a) improperness of an appeal of a settlement, or in the alternative, untimeliness of appeal;
(b) failure to designate necessary parties as appellees, specifically the City, Arvest Trust Company, and Fayetteville School District No. 1 which were parties to the settlement;
(c) lack of standing to bring the appeal since appellant is not a member of the class in the case below nor is he a sales tax payer of the City of Fayetteville; he bases standing on his citizenship of Fayetteville;
(d) lack of standing to bring the appeal since Haber-man represents interests adverse to the class as he and his attorney are technically defendants in the case as former employees of the City;
(e) mootness in that the attorney was paid in full as of February 1, 1994, by the City under the settlement, and Haberman did not post a supersedeas bond; and
(f) inappropriateness of appeal as it is only being pursued for the purpose of delay.

We need not address all of Lisle’s arguments since we grant his motion to dismiss on the basis that Haberman lacks standing to appeal. The basis of this decision lies in the reasoning of Croyden Assoc. v. Alleco, Inc., 969 F.2d 675 (8th Cir. 1992), which dismissed an unnamed class member’s appeal of the settlement entered into by the named class members. No other class members objected to the proposed settlement. The appellant there failed to intervene in the class action and thus could not appeal from the district court’s approval of the class action settlement, even though it submitted written objections to the fairness of the settlement, appeared at the hearing, and made oral objections to the proposed settlement.

We are cognizant of the fact that there is a split of authority among the circuits on this issue, but we follow the Eighth Circuit and its recent ruling. Haberman urges this court to follow the Seventh Circuit’s view as espoused in Patterson v. Stovall, 528 F.2d 108 (7th Cir. 1976), which allowed less than one percent of the class to appeal the settlement, but we find the reasoning in Croyden more sound. Thus, Haberman cannot pursue the appeal.

We point out, though, that an unsatisfied class member is not without alternatives. An unsatisfied class member’s options are to move to intervene as of right, collaterally attack the settlement approval by filing a separate suit challenging the adequacy of the class representation, or he may opt out. See Croyden, 969 F.2d 675, 678. The rationale of the class action is to render manageable litigation involving numerous class members who would otherwise all have access to court via individual lawsuits. As was emphasized in Croyden, if each dissatisfied class member could appeal individually, litigation would be uncontrollable, and the purpose of class actions would be defeated.

Haberman asserts alternatively that he does not pursue this action as a representative of the class but as an individual citizen of the City of Fayetteville, but this, too, would preclude appeal. Those facts would necessitate a separate action with different parties to the lawsuit. This is explained in the Supreme Court case of Marino v. Oritz, 484 U.S. 301 (1988), wherein petitioners appealed the settlement of a class action. Since they were not parties to the original litigation, and since they did not intervene for purposes of appeal, the Supreme Court dismissed their appeal. Under Croyden and Marino, both non-parties and unnamed members of class actions will be precluded from appealing a class action settlement.

Lastly, we note the words of the court in Croyden:

We believe it is particularly appropriate to require intervention as a condition for appeal when a class member’s challenge to the adequacy of a settlement is contrary to the view of all the other class members. This is such a case. We also believe that by requiring intervention as a condition of an appeal, the effect is to channel into one line of litigation all issues of the class action settlement. This will avoid the bifurcation that would result from dismissal of the appeal on a standing basis, followed by an independent action by the challenging class member.

Id., 969 F.2d at 680. Under either case rationale, we are compelled to grant Lisle’s motion to dismiss Haberman’s appeal.

Dudley, Hays, and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. This decision to dismiss the appeal of Richard Haberman is premised on a point not argued by the parties. Moreover, the case of Croyden Associates v. Alleco, 969 F.2d 675 (8th Cir. 1992), appears to be factually distinguishable. I would deny the motion and consider the appeal on the merits.

First, neither Richard Haberman nor John Lisle argued failure to intervene with respect to the motion to dismiss. Yet, the majority fixes on the issue and embraces Croyden Associates v. Alleco, supra, as its reason for dismissal. The inherent unfairness in all this is that Richard Haberman has never had an opportunity to respond to the intervention argument because it was not raised by John Lisle in his motion.

Secondly, the case of Croyden Associates v. Alleco, supra, is distinguishable on its facts and should not be controlling. Haber-man does not appeal from the settlement order, as was the case. in Croyden, but rather from the subsequent order setting the amount of legal fees. He hinged his standing to appeal on his membership in the certified class and his objection to the method of calculating fees, though Lisle contests this, and points to the fact that there is no one else requesting review of the fee decision. An important point in all this is the settlement order stated that legal fees would not be taken from the taxpayer money illegally-exacted (see Ark. Code Ann. § 26-35-902 (Repl. 1992)) but would be taken from the general funds of the City of Fayetteville. This means that no class member’s refund would be diminished. Named class representatives, consequently, had no incentive to question legal fees. The City of Fayetteville was a party to the settlement and had agreed not to appeal an attorney’s fee award. That left no one except unnamed class members to raise the issue.

Haberman did appear before the trial court and object to the method of calculating fees as the published notice required. To hold that in addition he should have formally intervened appears to be unduly technical. Public policy would seem to demand that unnamed class members be allowed to request review of the propriety of paying several million dollars out of city funds, though the appeal may ultimately prove to be unsuccessful and the legal fees awarded may prove to be appropriate. Even assuming Croyden is factually on point, unnamed class members should be permitted standing to contest an attorney’s fee when the paying entity — in this case the City of Fayetteville — does not. do so. There is certainly authority for this position. See, e.g., Bell Atlantic Corp. v. Bolger, 2 F.3d 1304 (3d Cir. 1993); In re Cement Antitrust Litig., 688 F.2d 1297 (9th Cir. 1982) (dictum), aff’d sub nom Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983); Patterson v. Stovall, 528 F.2d 108 (7th Cir. 1976); Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30 (3d Cir. 1971) (dictum). In Bell Atlantic Corp., the third circuit specifically rejected the Croyden rule of “no intervention, no standing” for appeals by unnamed class members. The court concluded:

Assuring fair and adequate settlements outweighs concerns that non-intervening objectors will render the representative litigation “unwieldy.” It is sufficient that Lazar attended the settlement hearing and voiced before the district court the same objections he now raises before us on appeal. . -

2 F.3d at 1310.

Furthermore, this court will treat actions by non-parties as the equivalent of an intervention in unusual circumstances when the public interest is involved. See Arkansas Best Corp. v. General Elec. Cap. Corp., 317 Ark. 238, 878 S.W.2d 708 (1994). This is just such a case.

I would find standing in Haberman to bring this appeal and decide the case on the-merits.

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


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    IN The Matter of The ESTATE of Kenneth Howard JONES, Deceased
    93-1177
    879 S.W.2d 433
    Supreme Court of Arkansas
    Opinion delivered July 18, 1994

      Joe Hardegree, for appellant.

      Josef V. Hobson, for appellee.
   Donald L. Corbin, Justice.

Bertha Jones appeals an order of Polk County Probate Court establishing her dower interest in her late husband’s estate. We have jurisdiction since resolution of the issues presented in this appeal requires interpretation of our statutes on the assignment of dower and curtesy. Ark. Sup. Ct. R. 1-2(a)(3).

The facts of this case are virtually undisputed. Bertha Jones is the widow of Kenneth Jones, who died intestate. In addition to his wife, the decedent was survived by his only son David Paul Jones. David Paul Jones' was named administrator of his father’s estate. This suit began when Bertha Jones petitioned the probate court to allot her dower interest. The only property at issue is an eighty-acre tract of real estate near Waldron in Scott County. The parties stipulated the widow was entitled to a one-third interest in the land for her life. In her petition, the widow alleged the real property could not be divided in kind. The parties waived the appointment and report of commissioners as provided in Ark. Code Ann. § 28-39-304 (1987). The probate court held a hearing and entered an order finding that the dower could not be allotted out of the real estate in question without great prejudice to the widow; that the eighty-acre tract of real estate should be valued but not sold; and that the dower rights should be converted to cash based upon the commutation tables using the widow’s age of sixty, the interest rate of six percent, and a value of $650.00 per acre.

Bertha Jones appeals from the probate court’s order, arguing the probate court erred in the following respects: (1) in failing to order a sale of the property; (2) in ordering the property to be valued but not sold; (3) in commuting the dower interest based on figures from the ordered valuation rather than a sale; and (4) in fixing a value of $650.00 per acre. The second and third arguments are so closely related that we must consider them together; we conclude they require reversal.

Our review of probate cases is de novo, just as it is in chancery cases. Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975). At the hearing on the petition to allot dower, the probate court heard testimony from Bertha Jones, David Paul Jones, and two independent real estate brokers as to the description, value, and possible uses of the eighty-acre tract. The testimony was undisputed that the tract was not uniform from east to west nor from north to south; the western part was good pasture land with Bermuda grass and a pond in the northwest corner, while the eastern part was low land with a gully coming out near the southeast corner. The southwest corner of the property borders on the city limits of Waldron. The east side of the property lies less than one-half mile east of United States Highway 71; a county road runs east from Highway 71 along the south side of the property. There is a residential subdivision to the east of the tract. The two real estate brokers testified the highest and best use of the property would be as a residential subdivision. They stated the value of the eighty acres, if subdivided and sold as residential lots, would be $1,250.00 per acre and $1,100.00 per acre, respectively. One of the brokers offered to purchase the entire tract for $1,100.00 per acre. This same broker also testified that if the property was used for farm property, its value would be $650.00 per acre. David Paul Jones testified that the eighty acres was ancestral farm property; that his father had inherited the farm from his grandfather; and that the west part of the farm contained a family cemetery .with six graves, some of which dated from 1851. David Paul Jones also stated he had no intention of selling the property and wanted to keep it in the family as long as possible. The widow stated she valued the property at $3,000.00 to $3,500.00 per acre based on its potential use as a residential subdivision. There was also some evidence indicating the eighty acres could be leased as pasture land for $10.00 per acre per year.

The widow contends the probate court erred in fixing a value on the land without ordering a sale and in commuting her interest to present value based upon that fixed value. We agree that the court’s fixing a value without ordering a sale was not authorized by our statutes or our case law. When a probate court finds the land cannot be divided in kind to effectuate dower rights, it may order the property rented and the rental divided, or it may order the property sold and the proceeds divided. Ark. Code Ann. §§ 28-39-305, -306 (1987); Harrison v. Harrison, 234 Ark. 271, 351 S.W.2d 441 (1961); Johnson v. Johnson, 92 Ark. 292, 122 S.W. 656 (1909). However, there is no authority that would allow the-probate court to receive evidence of the property’s value and then place a value on the property accordingly. That is precisely what was done in this case, and it was error.

It is well-settled that probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers as are conferred by the constitution or statutes, or necessarily incidental thereto. Arkansas State Employees Ins. Advisory Comm’n v. Estate of Manning, 316 Ark. 143, 870 S.W.2d 748 (1994). The probate court valued the property at $650.00 per acre for purposes of commuting the dower interest to a lump sum in present value. While there is express statutory authority for commuting a dower interest to present value for a lump sum payment, Ark. Code Ann. §§ 18-2-101 to -106 (1987), there is no authority allowing the court to value the property for such commutation purposes without a sale. Accordingly, we must reverse and remand the order of the probate court for further proceedings consistent with this opinion.

As we reverse on points two and three, the first and fourth points are rendered moot, and we need not address them.


author: Robert L. Brown, Justice. Steele Hays, Justice,

text:
    Michael Wayne BYRD v. STATE of Arkansas
    CR 94-167
    879 S.W.2d 434
    Supreme Court of Arkansas
    Opinion delivered July 18, 1994

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Michael Wayne Byrd contends that Act 592 of 1993, now codified at Ark. Code Ann.' § 16-32-202 et seq. (Repl. 1994), violates the Arkansas Constitution because it permits a trial court to empanel a six-person jury for misdemeanor offenses. We agree with Byrd that Act 592 does violate Article 2, § 7, of the Arkansas Constitution. We hold that the Act cannot stand, and we reverse and remand for a new trial.

On December 10, 1992, Byrd was arrested outside of Knob Hill after he was observed swerving from side to side and crossing the center line and charged with a misdemeanor, Driving While Intoxicated, first offense, under Ark. Code Ann. § 5-65-103 (1987). He was subsequently tried in Prairie Grove Municipal Court and found guilty. He appealed to circuit court, and on September 16, 1993, a trial de novo was held. Before the trial began, the trial court announced that the appeal would be heard by a six-person jury to which Byrd objected on multiple grounds, including a denial of his right to a jury trial as contemplated under the Arkansas Constitution. The trial court overruled his objection, and the trial took place before six jurors. Byrd was again convicted of DWI, first offense, and sentenced as follows: ten days in jail, a fine of $150, court costs totaling $392.75, and a suspended drivers license for ninety days.

The paramount section of Act 592 at issue in this appeal is set out below:

(a)(1) The jurors for the trial of criminal prosecutions shall be selected and summoned as provided by law.
(2) Juries shall be composed of twelve (12) jurors.
(b) However, cases other than felonies may be tried, in the discretion of the trial court judge, by a jury of six (6) jurors.

Ark. Code Ann. § 16-32-202 (Repl. 1994). Act 592 then goes on to describe the procedure for selecting juries of either twelve or six persons in misdemeanor cases, depending on what the trial court approves.

Prior to Act 592, subsection (a) of § 16-32-202 was identical to subsection (a) of Act 592, but § 16-32-202(b) read:

(b) However, cases other than felonies may be tried by a jury of less than twelve (12) jurors by agreement of the parties.

Ark. Code Ann. § 16-32-202(b) (1987). (Emphasis added.) This statute allowing for a jury of less than twelve people “by agreement of the parties” had its genesis in the 19th century and was statutory law in Arkansas until the enactment of Act 592. See Code of Practice, § 191, p. 302 (1869).

Article 2, § 7 of the Arkansas Constitution establishes the inviolate right to trial by jury in this State. It provides in relevant part:

The right of trial by jury shall remain inviolate, and shall extend to all cases at law. . but a jury trial may be waived by the parties in all cases in the manner prescribed by law; and in all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same.

Article 2, § 7, represents two votes by the people of this State. The original section 7 was part of the 1874 Constitution ratified by vote of the people on October 13, 1874, and included the clauses stating that the right of trial by jury was inviolate and subject to waiver by the parties as prescribed by law. More than 50 years later, Amendment 16 added the clause relating to jury verdicts by nine jurors instead of twelve in civil cases. That amendment was adopted by a vote of the people on November 6, 1928.

Prior to the adoption of the 1874 Constitution, this court defined the term “jury” in two cases. See Larillian v. Lane & Co., 8 Ark. 372 (1848); State v. Cox, 8 Ark. 436 (1848); overruled in part on other grounds, Eason v. State, 11 Ark. 481 (1851). In Larillian, only eleven people served on the jury, and we said:

It is a well ascertained fact, that the common law jury consisted of twelve men, and as a necessary consequence, since the constitution is silent upon the subject, the conclusion is irresistable (sic) that the framers of that instrument intended to require the same number.

8 Ark. at 374-375. In Cox, we had this to say regarding a six-person jury’s hearing a felony case of assault and battery pursuant to a state statute:

From the earliest period of the common law the term jury has had a technical and specific meaning, and has ever signified “a body of twelve citizens, duly qualified to serve on juries, empannelled (sic) and sworn to try one or more issues of facts submitted to them, and to give a judgment respecting the same called a verdict.” Bouvier’s Law Diet., title jury. The constitutional provisions securing the right of trial by a jury means a jury of twelve men, according to the known technical meaning of the term. Of his right to such a jury the defendant cannot be deprived, except by his own consent. True, he may waive the right and submit to a decision of six men, even to that of the justice of the peace himself, but in all cases where he may require it, it is the duty of the justice to empannel (sic) a legal jury of twelve men for the trial of the cause.

8 Ark. at 446-447.

It is against this backdrop that the 1874 Constitution was ratified. Accordingly, there is no question in our minds that both the framers of the Arkansas Constitution and the people voting on it read “jury” to mean a twelve-person panel. Indeed, that was the early definition of the term as noted in the reference to Bouvier’s Law Dictionary in the quotation from State v. Cox, supra, and that definition has continued well into the 20th century. See, e.g., Black’s Law Dictionary, “Petit Jury,” p. 994 (4th Ed. 1957).

After the adoption of the 1874 Constitution, this court reversed a defendant’s misdemeanor conviction for selling liquor to a minor because he was convicted by only eleven jurors. Warwick v. State, 47 Ark. 568, 2 S.W. 335 (1886). There, we said: “The word ‘jury’ is used in the constitution in its common-law sense, and means 12 men.” 47 Ark. at 570, 2 S.W. at 336.

That “jury” under Article 2, § 7, means twelve persons is further evidenced by Amendment 16 to § 7 adopted in 1928, which clearly contemplated a jury of twelve people. The amendment authorized a reduction in the number of jurors from twelve to nine for verdicts in civil trials. Here again, we have no doubt that the people of Arkansas spoke on the issue with the standard concept of a twelve-member petit jury firmly entrenched in their. minds.

It was in 1970 with the U.S. Supreme Court’s decision in Williams v. Florida, 399 U.S. 78 (1970), that perceptions regarding the makeup of juries began to blur significantly. In that decision, the issue was whether a Florida statute providing for juries of twelve members in capital cases and six in all other criminal matters was constitutional under the U.S. Constitution. The Court noted that in the 19th century the size of the jury generally became fixed at twelve but went on to say that this seems more to have been a “historical accident.” It concluded that the framers of the U.S. Constitution from all appearances did not intend to etch the concept of twelve jurors into the Sixth Amendment and that the number was “unnecessary to effect the purposes of the jury system.” 399 U.S. at 461.

In the wake of Williams v. Florida, several state courts followed suit and adopted the rationale of that case with respect to statutes authorizing fewer than twelve jurors in certain trials. See, e.g., State v. Ritchie, 114 Idaho 528, 757 P.2d 1247 (Ct. App. 1988); Carter v. State, 702 S.W.2d 774 (Tex. Ct. App. 1986); State v. Thrall, 39 Conn. 347, 464 A.2d 854 (1983); City of Seattle v. Hesler, 98 Wash.2d 73, 653 P.2d 631 (1982); O’Brien v. State, 422 N.E.2d 1266 (Ind. Ct. App. 1981); State ex rel City of Columbus v. Boyland, 58 Ohio St.2d 490, 391 N.E.2d 324 (1979).

We decline the temptation to accept the Williams v. Florida rationale that the jury number can be changed by legislative act and are more persuaded by the reasoning of the Minnesota Supreme Court in State v. Hamm, 423 N.W.2d 379 (Minn. 1988) (plurality decision). In Hamm, the defendant asked for a twelve-person jury for his DWI charge but was limited to a jury of six under a state statute. He was convicted. The Minnesota Constitution, similar to Arkansas’s, provided that the right to a jury trial was “inviolate” but did not state the number of jurors. The lead opinion by Justice Yetka looked to an 1869 Minnesota case interpreting the term “jury” as a “body of twelve persons.” Justice Yetka underscored the fact that the right to a trial before an impartial jury was fundamental and one of the “keystones to which other rights are anchored. . . .” 423 N.W. at 385. He concluded that the early caselaw defining juries as consisting of twelve persons was persuasive and that there was no good reason to overrule it. In a concurring opinion on narrower grounds, Justice Kelley wrote that reduction in jury size from twelve to six should be accomplished by constitutional amendment rather than legislative act.

We agree and are reluctant to erode the fundamental right of trial by jury under our system of state government without a vote of the people, particularly in light of Amendment 16 which installed nine-juror verdicts in civil cases and was a clear recognition by the people of this State that twelve-member juries was the standard. Nor are we persuaded by arguments that the number twelve is merely mystical and unnecessary and unimportant as suggested in Williams v. Florida, supra. The utilization of that number for jury composition for at least seven hundred years belies that. A panel of six jurors for misdemeanor trials may seem economical and, therefore, desirable at first blush because less serious offenses are involved. However, many misdemeanors including the DWI offense at hand are serious and carry with them maximum jail terms of one year and substantial fines.

We, therefore, strike down Act 592 of 1993, codified at Ark. Code Ann. §§ 16-32-202 and 16-32-203 (Repl. 1994), which provides for a jury of six persons at the trial court’s discretion, as violative of Article 2, § 7 of the Arkansas Constitution. Because we deem Act 592 to be void, §§ 16-32-202 and 16-32-203, as they existed prior to the enactment of Act 592, remain viable and extant.

Reversed and remanded for a new trial to be conducted in accordance with this opinion.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. Act 592 of 1993 permits a trial-court to empanel a six-person jury for misdemeanor offenses. We have held that there is a strong presumption of constitutionality attendant to every legislative enactment, and all doubt concerning it must be resolved in favor of constitutionality. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). The majority holds that Act 592 violates Article 2, § 7, of the Arkansas Constitution because the word “jury” means a twelve-person panel. Since Article 2, § 7, does not specify what number of persons shall constitute a jury, I respectfully disagree.

The majority principally relies on three cases where the Court simply concluded “the common law jury consisted of twelve men.” See Larillian v. Lane & Co., 8 Ark. 372 (1848); State v. Cox, 8 Ark. 436 (1848); Warwick v. State, 47 Ark. 568, 2 S.W. 335 (1886). However, the common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions. Dimick v. Schiedt, 293 U.S. 474 (1935); Funk v. United States, 290 U.S. 371 (1933). The common law is susceptible of growth and adaptation to new circumstances and situations, and courts have the power to declare and effectuate what is the present rule in respect of a given subject without regard to an earlier view. Dimick, supra.

In Williams v. Florida, 399 U.S. 78 (1970), the United States Supreme Court held that a panel of twelve is not a necessary ingredient of “trial by jury.” The Court recognized that sometime during the 14th century the size of the jury at common law came to be fixed generally at twelve; however, the Court found the selection of that particular number was simply an historical accident, unnecessary to effect the purposes of the jury system. Indeed, juries of less than twelve were considered and actually used in the early days of our country. H. Richmond Fisher, The Seventh Amendment and the Common Law: No Magic In Numbers, 56 F.R.D. 507 (1973). The majority, however, concludes they are not persuaded by the arguments in Williams because twelve-person jury panels have been utilized for at least seven hundred years.

When the 1874 Constitution was ratified, Article 2, § 7 of the Arkansas Constitution provided that the “right of trial by jury shall remain inviolate.” The provision did not specify what number of persons shall constitute a jury. The majority places significance upon Amendment 16 to § 7 which was adopted in 1928. Amendment 16 added the clause which provides:

[A]nd in all jury trials in civil cases, where as many as nine of the jurors agree upon a verdict, the verdict so agreed upon shall be returned as the verdict of such jury, provided, however, that where a verdict is returned by less than twelve jurors all the jurors consenting to such verdict shall sign the same.

The majority concludes “the people of Arkansas spoke on the issue with the standard concept of a twelve-member petit jury firmly entrenched in their minds.” However, Amendment 16 was adopted at a time when both this Court and the United States Supreme Court relied upon the common law to conclude the term “jury” meant twelve men. Furthermore, Amendment 16 was adopted because this Court held it was unconstitutional for the General Assembly to enact legislation authorizing a verdict by nine or more jurors in civil cases. Minnequa Cooperage Co. v. Hendricks, 130 Ark. 264, 197 S.W. 280 (1917).

I fully agree with Chief Justice McCulloch’s dissenting opinion in Minnequa, supra, where he writes:

The Declaration of Rights embodied in the Constitution merely provides that “the right of trial by jury shall remain inviolate.” It does not specify what number of [persons] shall constitute a jury, nor how the verdict shall be rendered. That is left, by the silence of the Constitution on the subject, to legislative regulations. The purpose of the framers of the Constitution was to preserve, in this State, the principle of trial by jury, and not to prescribe any particular form by which the remedy shall be applied. There is no magic in particular numbers, and it is difficult for me to believe that those who inserted the declaration of principles into our organic law intended to hamper the Legislature in reforming legal procedure from time to time so as to keep pace with advanced thought. Any other view constitutes the worship of mere form instead of preserving a principle.

In sum, every feature of the jury as it existed at common law was not necessarily included in the term “jury” found in Article 2, § 7, of the Arkansas Constitution. Because I believe Act 592 does not violate Article 2, § 7, I would affirm the trial court.


author: Donald Price Chaney, Jr.,

text:
    Michael W. WALKER; Aearth Development, Inc.; Aearth Preparations, Inc.; and Coal Processors v. FIRST COMMERCIAL BANK, N.A.
    92-1488
    880 S.W.2d 316
    Supreme Court of Arkansas
    Opinion delivered July 18, 1994
    [Rehearing denied September 19, 1994.]

      Michael G. Burk and Dana A. Reece, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Glenn W. Jones, R. Kenny McCulloch, and Scott Michael Strauss, for appellee.

      Brown, J., not participating.

   Donald Price Chaney, Jr.,

Special Justice. This lender liability case involves many issues, including the pivotal issue of whether Appellants were wrongfully deprived of a jury trial. The Court finds that the transfer-of this case from circuit to chancery court did wrongfully deprive the Appellants of their right to a jury trial. The Court need not address any other issues in view of the ruling on this dispositive issue. The Court finds that Appellants’ violations of the rules for brief preparation were not flagrant and will not deprive them of having the merits of the case decided on appeal.

The Appellants filed a lender liability claim against First National Bank of Little Rock, the Appellee’s predecessor in interest. The consolidated complaint alleged claims based on negligence, gross negligence, breach of fiduciary duty, breach of the common law and Arkansas Uniform Commercial Code duties of good faith and fair dealing, breach of contract, breach of implied joint venture interest, securities violations of joint venture agreement, conversion, negligent misrepresentation, fraud, fraudulent conspiracy, fraudulent misrepresentation, duress, tortious interference with business expectancy, violation of the Bank Holding Company Act, 12 U.S.C. § 1971-1978, and the Racketeering Influencing Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(C).

Appellants contended, among other things, that their coal mining business failed because Appellee insisted that George Locke be included as an owner and manager of Coal Processors when one of the other joint venture partners withdrew, and that Appellee failed to provide long-term financing that was promised. Appellants also contended that the Appellee transferred funds without authorization from an escrow account for coal sale proceeds to pay a loan owed to Dan Lasater, prompting a mining equipment supplier to repossess essential equipment and thus causing the failure of Appellants’ coal mining business.

The Appellee filed an answer claiming an equitable setoff and recoupment for the amount of unpaid loans owed by Appellants. Based upon this allegation of an equitable defense, the circuit court transferred the case to chancery court over Appellants’ objections. The chancery court denied Appellants’ motion to return the case to circuit court. Following a trial that resulted in a voluminous forty-six-volume record, the Chancellor ruled that the Appellants had standing and capacity to bring their claims, but held against the Appellants on the merits of their lender liability claim. This appeal followed.

In order for an action at law to be transferred to chancery to try an equitable defense, such equitable defense must be “exclusively cognizable in chancery” pursuant to Ark. Code Ann. § 16-57-106 (1987). There must be “peculiar equities” allegéd in the pleadings or that exist in the proffered proof for a cause of action to be transferred to the chancery court for adjudication of an equitable setoff. Poultry Grower’s, Inc. v. Westark Prod. Credit Ass’n, 246 Ark. 995, 440 S.W.2d 531 (1969). We have often said that equity has no jurisdiction where there is a complete and adequate remedy at law. Taylor’s Marine, Inc. v. Waco Mfg., Inc., 302 Ark. 521, 792 S.W.2d 286 (1990).

We find here that Appellee’s defense of equitable setoff was not exclusively cognizable in equity. Appellee’s setoff defense sought to offset against any recovery awarded Appellants the amount of unpaid loans owed by Appellants to Appellee under promissory notes that were executed during the course of the parties’ banking relationship. The amount of such unpaid loans was a liquidated sum certain, and Appellee filed a claim for such amount in the respective bankruptcy cases fded by Appellants. Such liquidated sum owed by Appellants to Appellee would be cognizable at law and could be considered by the circuit court pursuant to Ark. Code Ann. § 16-63-206 (1987), which provides for setoff as follows:

(a) A setoff may be pleaded in any action for the recovery of money and may be a cause of action arising either upon contract or tort.
(d) When any plaintiff shall be indebted to a defendant in any bond, bill, note, contract, book account, or other liquidated demand and the defendant fails to setoff the debt against the plaintiff’s demand, the defendant shall be forever barred from recovering costs in any suit which he may thereafter institute upon any such bond, bill, note, contract, book account, or other liquidated demand.

Id., § 16-23-206(a) and (d).

This statute is broad enough to include both setoff and recoupment, a distinction that this Court has not made previously. In First State Bank of Crossett v. Phillips, 13 Ark. App. 157, 681 S.W.2d 408 (1984), the court defined recoupment as “the right to keep back rightfully some part owed so as to reduce or diminish the total sum due,” and noted that the counterclaim was in the nature of recoupment where it arose from the same loan transaction giving rise to the foreclosure action.

Appellee contends that the insolvency and bankruptcy of the Appellants justifies equity intervention, and that 11 U.S.C. § 524(a) would prohibit Appellee’s offsetting its liquidated debt. However, the Appellee asked for and received an order from the bankruptcy court relaxing the automatic stay as to the corporate Appellants, which removed any impediment to the assertion of Appellee’s recoupment or setoff at law. Furthermore, the Ninth Circuit Court of Appeals has held that 11 U.S.C. § 553 allows setoffs in bankruptcy to the same extent they are allowed under state law. In re DeLaurentiis Entertainment Group, Inc. 963 F.2d 1269 (9th Cir. 1992). The Court of Appeals noted that a setoff is allowed as a defense to a claim brought by a bankruptcy debtor against a creditor, and that the creditor can only claim an amount large enough to offset its debt.

In Westinghouse Electric Corp. v. Fidelity & Deposit Co., 63 B.R. 18, 21 (E.D. Pa. 1986), the court cited Collier on Bankruptcy, § 553.03, as follows:

Under the legal and equitable principles of setoff,... the mutual debt and claim contemplated are generally those arising from different transactions .. . Recoupment, on the other hand, is the setting up of a demand arising from the same transaction as the plaintiff’s claim or cause of action, strictly for the purpose of abatement or reduction of such claim.

Id. [Emphasis in original.]

The court found that the recoupment defense was not affected by the filing of bankruptcy. A similar view is expressed in 8A C.J.S. Bankruptcy § 164 where it is stated that the setoff need not arise in the same transaction, and that “the doctrine of recoupment is available when the debt arises from the same transaction.”

Our statute, Ark. Code Ann. § 16-63-206 (1987), is broad enough to include both setoff and recoupment, which is available as a defense to Appellee regardless of whether Appellants have filed bankruptcy or been discharged in bankruptcy. There is no peculiar equity under these circumstances that would mandate a transfer to chancery court. The defense of setoff or recoupment is available in the action at law for the liquidated sum owed by Appellants to Appellee for the unpaid loans which arose from the same lending relationship between the parties that gave rise to Appellant’s lender liability claim.

We hold that the Appellants were wrongfully deprived of a jury trial on their lender liability claim as guaranteed to them by Article 2, Section 7 of the Constitution of Arkansas, which provides as follows:

The right of trial by jury shall remain inviolate and shall extend to all cases at law, without regard to the amount in controversy.

The right to jury trial is a fundamental constitutional right that is protected by the Constitution of Arkansas, and procedural rules will not be applied to diminish the right to a jury trial. Bussey v. Bank of Malvern, 270 Ark. App. 37, 603 S.W.2d 425 (Ark. App. 1980).

A defendant may not assert an equitable counterclaim merely to avail himself of chancery court jurisdiction and deprive the plaintiff of the right to a trial by jury. Axley v. Hammock, 185 Ark. 939, 50 S.W.2d 608 (1932). It is only where an equitable defense is exclusively cognizable in equity that a transfer to chancery should be authorized, which is not present here. For this reason, this case is reversed and remanded to the chancery court with instructions to transfer the case to circuit court for further proceedings.

Reversed and remanded.

Brown, J., not participating.


author: Per Curiam.

text:
    Robert Lee JONES v. STATE of Arkansas
    CR 94-595
    883 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered July 18, 1994

      Bart E. Ziegenhorn, for appellant.
    No response.
   Per Curiam.

Robert Lee Jones was convicted and sentenced to ten years. His attorney at trial, Davis Loftin, filed a notice of appeal and later a motion to extend the time to lodge a record. The extension was apparently granted. Loftin was a public defender at this time, as was Tom Montgomery. Montgomery stated that, when Loftin left the public defender’s office, Loftin agreed to continue his assigned cases on appeal, but Loftin failed to take further appellate action on Jones’ appeal.

Although Loftin never moved to withdraw as Jones’ counsel, Bart E. Ziegenhorn was appointed counsel for Jones, who was determined indigent. Ziegenhorn now files a motion for rule on the clerk requesting that he be allowed to lodge Jones’ record and pursue his appeal because Loftin had failed to meet his responsibility in this respect.

We grant Jones’ motion, but we further set a hearing date on Monday, September 12, 1994, at 9:00 a.m., and direct Davis Loftin to appear and show cause why he should not be held in contempt for failing to file a record, brief or other appropriate motions in this cause.


author: Steele Hays, Justice.

text:
    Albert BETTS v. STATE of Arkansas
    CR 93-932
    882 S.W.2d 671
    Supreme Court of Arkansas
    Opinion delivered September 12, 1994

      McCullough Law Firm, by: Rita F. Bailey, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Albert Betts appeals from a judgment imposing a life sentence pursuant to his conviction for first degree murder. For reversal, he argues a mistrial should have been ordered. We disagree and affirm.

The driver and passenger of a passing car testified they saw Dexter Arnett and Albert Betts arguing on a Stuttgart street corner. When the car slowed for traffic, Arnett jumped into the back seat and refused to get out. Betts reached through the window on the passenger’s side and fired a pistol, killing Dexter Arnett.

During closing argument the prosecutor asked the jury:

And ask yourself a question. If this man gets anything but life imprisonment can you feel safe? Can anybody feel safe?

Defense counsel objected and asked for a mistrial upon the postulate the jurors were being asked to decide guilt or innocence based on their personal safety. The prosecutor apologized and defense counsel asked for an admonition, which the trial court gave:

I want to admonish and caution you that your personal safety is not an issue in this case. And it isn’t a matter to be considered by you in determining the guilt or innocence of Mr. Betts.

There was no request for a ruling on the mistrial motion. Accordingly, if any impropriety occurred, it was expunged by the admonition. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); King v. State, 312 Ark. 89, 847 S.W.2d 37 (1993); Donald v. State, 310 Ark. 197, 833 S.W.2d 375 (1992).

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and the objections have all been abstracted and certified by the state. There are no other rulings adverse to the appellant which constituted prejudicial error.

For the reasons stated, the arguments presented on appeal are denied and the judgment of conviction is affirmed.


author: David Newbern, Justice.

text:
    Dennis THORNTON v. STATE of Arkansas
    CR 94-180
    883 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered September 12, 1994

      William R. Simpson, Jr., Public Defender, by: Kent C. Krause. Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   David Newbern, Justice.

It is “unlawful . . . for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.” Ark. Code Ann. § 5-65-103(a) (Repl. 1993). “Intoxicated,” as defined in Ark. Code Ann. § 5-65-102(1) (Repl. 1993), includes being

influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians.

Dennis Thornton was found to be in control of a vehicle and, upon being questioned by the arresting officer, stated he was not drunk but had been “sniffing paint.” Subsequent blood analysis showed the presence of toluene. He was convicted of driving while intoxicated.

Mr. Thornton does not question the testimony that he appeared to be intoxicated and failed a standard test in that respect at the scene of his arrest. Nor does he challenge the scientific testimony that ingestion of toluene causes disorientation, dizziness, and a slowing of motor skills. Rather, he argues that the term “intoxicant” as used in § 5-65-102(1) is unconstitutionally vague. We hold the statute gave him sufficient notice of the illegality of his conduct and thus affirm the conviction.

In Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984), a similar challenge was made to the term “intoxicated” found in the statute now codified as § 5-65-103(a). The term was defined in Ark. Stat. Ann. § 75-2502(a) (Supp. 1983), the same as it is now defined in the successor statute, § 5-65-102(1), except for inclusion in the new law of the term, “any intoxicant.” We held the former definition was sufficient because it gave fair warning to a person of ordinary intelligence of conduct which would constitute the offense described. We said, “The Constitution does not require impossible standards of specificity and a statute is sufficiently clear if its language conveys sufficient warning when measured by common understanding and practice. Jordan v. DeGeorge, 341 U.S. 223 (1951); Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979).”

In State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992), we added, referring to the Davis case, “it is not necessary that all kinds of conduct falling within the reach of the statute be particularized and the statute will not be struck down as vague only because marginal cases could be put where doubts might arise.”

In addition to our conclusion that §§ 5-65-103(a) and 5-65-102(1) give fair notice, standing alone, of the conduct prohibited, we note that the General Assembly has recognized toluene as an intoxicant and made it a crime to ingest it for the purpose of becoming intoxicated. Ark. Code Ann. § 5-60-116 (Repl. 1993). Mr. Thornton points out that the statute concludes, “For the purposes of this section, any condition so induced shall be deemed to be an intoxicated condition.” He contends we thus cannot transfer that definition of “intoxicated” to the law governing driving while intoxicated. We agree with that argument and cite § 5-60-116 only to show that the General Assembly has recognized toluene as an intoxicant.

Our conclusion is that the addition of the term “any intoxicant” to “alcohol, a controlled substance, or a combination thereof’ has not made the definition vague. A person of ordinary intelligence knows that the use of a substance tending to put him or her in the condition described in § 5-65-102(1) constitutes use of an “intoxicant” and that being in control of a motor vehicle shortly thereafter may violate the law.

Affirmed.


author: Tom Glaze, Justice.

text:
    Marsha Lynn MORRIS v. Norman Ray STROUD
    93-192
    883 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered September 12, 1994
    [Rehearing denied October 24, 1994.]

      Mark S. Cambiano, for appellant.

      Eddie N. Christian, for appellee.
   Tom Glaze, Justice.

The parties in this case were divorced on June 29, 1992, and appellant Marsha Lynn Morris duly filed her notice of appeál on July 7, 1992. Ms. Morris obtained an extension from the chancery court to file her record, but the extension date was to February 27, 1993 — nearly eight months after the parties’ divorce decree had been entered.

Ark. R. App. R 5(b), provides in relevant part that the trial court may extend the time for filing the record on appeal but “in no event shall the time be extended more than seven months from the date of the entry of the decree except in the event of a post-judgment motion under Ark. R. App. P. 4(b) and (c).” See In Re Estate of Wilkinson, 311 Ark. 311, 843 S.W.2d 316 (1992); Perry v. State, 287 Ark. 384, 699 S.W.2d 739 (1985); Yent v. State, 279 Ark. 268, 650 S.W.2d 577 (1983). No post-judgment motions were filed below in this case. This court has explained before that, when an appellant seeks an extension of time beyond the seven months to file the record, appellant’s remedy is to file a partial record in the supreme court and seek an extension for a compelling reason, such as an unavoidable casualty. In Re Estate of Wilkinson, 311 Ark. at 312, 843 S.W.2d at 317.

Although Ms. Morris failed to comply with the seven-month requirement as noted above, the supreme court clerk’s office improperly failed to reject her untimely tendered record. It is suggested that the mistake of the clerk should somehow permit this appeal. The rule of law is clear that it is the duty of counsel, not the judge, not the clerk, not the reporter, to perfect an appeal. Perry, 287 Ark. 384, 699 S.W.2d 739; Jordan v. White River Medical Center, 301 Ark. 292, 783 S.W.2d 836 (1990). Because Ms. Morris’s failure to lodge a timely record is jurisdictional, we must dismiss this appeal.

       In criminal, not civil, appeals, this court has granted motions for rule on the clerk when appellant’s attorney admits that the record was tendered late due to a mistake on his or her part. Harris v. State, 304 Ark. 111, 798 S.W.2d 926 (1990); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964, (1979); see also In Re: Counsel's Failure to File Timely Briefs in Criminal Appeals, 276 Ark. 427, 635 S.W.2d 264 (1982).


text:
    Steven Kindall MOORE v. STATE of Arkansas
    CR 94-222
    882 S.W.2d 667
    Supreme Court of Arkansas
    Opinion delivered September 12, 1994

      Daniel D. Becker and Terri L. Harris, for appellant.

      Winston Bryant, Att’y Gen., by; Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Steven Kindall Moore, appeals a judgment of the Garland County Circuit Court convicting him of first degree murder and sentencing him to life imprisonment in the Arkansas Department of Correction. He raises two points for reversal of the judgment which was entered pursuant to a jury verdict. First, he argues the trial court erred in allowing certain hearsay testimony. Second, he argues the trial court erred in refusing his proffered jury instruction on accomplice liability. Both arguments are without merit and we affirm the-judgment.

As appellant does not challenge the sufficiency of the evidence, the facts need not be recited in detail. However, it is helpful to note that appellant was charged along with a co-defendant, Jeffery William Miller, with the first degree murder of Nicholas Benavidez. The evidence presented at trial revealed that Mr. Benavidez was shot and killed in the front yard of his home in Hot Springs at approximately 7:00 p.m. on June 8, 1993.

Appellant’s first argument for reversal is that the trial court erred in allowing Teresa Interiano to testify as to what Mr. Benavidez told her about a visit he had from two men on the day he was murdered. Ms. Interiano testified that she, her baby, and her husband went to Mr. Benavidez’s house to help install an air conditioner at approximately 6:00 p.m. on the evening of the murder. Ms. Interiano stated she knocked three times before Mr. Benavidez answered the door. According to Ms. Interiano, Mr. Benavidez was frightened and in hysterics when he answered the door and had a machete in one hand and a pistol in his pocket. Appellant interrupted Ms. Interiano’s testimony at this point, making a hearsay objection. The trial court ruled Ms. Interiano’s testimony established that the witness was upset, scared, and nervous so as to allow additional testimony under the excited utterance exception to the hearsay rule. Ms. Interiano then recounted that Mr. Benavidez described two men who entered his house, threw him so hard against a wall it left an indentation, and told him to stay home because they would be back. Appellant concedes in his brief that the descriptions given by Mr. Benavidez and recounted by Ms. Interiano match the descriptions of himself and his co-defendant.

Ms. Interiano continued her testimony by stating she contacted the Hot Springs Police from her parents’ home, which was near Mr. Benavidez’s home. Officer Richard Giles of the Hot Springs Police Department testified he arrived at Mr. Benavidez’s home at approximately 6:00 p.m. or 6:30 p.m. on June 8, 1993. Officer Giles stated Mr. Benavidez would not answer his questions, although he indicated he did not need assistance from the police. Ms. Interiano was present while the police questioned Mr. Benavidez. After the officers left, Ms. Interiano returned to her parents’ home. Shortly thereafter, two men shot and killed Mr. Benavidez in his front yard.

Appellant argues the challenged testimony was not admissible as an excited utterance because there was no reference to the time lapse between the altercation with the men and the statements Mr. Benavidez made to Ms. Interiano. Appellant contends that if indeed the altercation occurred immediately prior to the statements, Mr. Benavidez would have recounted it to Officer Giles. Specifically, appellant contends Ms. Interiano did not testify as to the time the altercation or the startling event occurred.

Our law on the excited utterance exception is well-settled:

A statement relating to a startling event made while the declarant is under the stress of excitement caused by the event is not excluded by the hearsay rule. A.R.E. Rule 803(2). For the excited utterance exception to apply, there must be an event which excites the declarant. Also, the statements must be uttered during the period of excitement and must express the declarant’s reaction to the event. Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990).
Borrowing from United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), we stated the factors to consider in determining whether a statement is an excited utterance include (1) the age of the declarant, (2) the physical and mental condition of the declarant, (3) the characteristics of the event, and (4) the subject matter of the statement, and we noted that the lapse of time between the startling event and the out-of-court statement, although relevant, is not dispositive of the application of the excited utterance exception to the hearsay rule.

Killcrease v. State, 310 Ark. 392, 394-95, 836 S.W.2d 380, 381-82 (1992) (emphasis added). It is within the trial court’s discretion to determine whether a statement was made under the stress of excitement or after the declarant has calmed down and had an opportunity to reflect. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987).

The testimony here indicated the adult declarant was assaulted and battered in his home on the day he was murdered by two men who threatened to return. This is without doubt a startling event as contemplated in Rule 803(2). The testimony also indicated the victim answered the door of his home later that day armed with a pistol and a machete. This is evidence the victim was still under the stress and excitement of the startling event. The declarant’s statements to Ms. Interiano therefore satisfy the requirements of the excited utterance exception. We emphasize that the declarant’s condition at the time he made or did not make any statements to Officer Giles is irrelevant to the declarant’s condition when he made the statements to the witness, Ms. Interiano. There was no abuse of discretion in the trial court’s decision. See Killcrease, 310 Ark. 392, 836 S.W.2d 380; see also Smith v. State, 303 Ark. 524, 798 S.W.2d 94.

Appellant’s second argument for reversal is that the trial court erred in refusing to instruct the jury on a modified version of AMI Crim. 401 concerning accomplice liability. The court refused the proffered modified version and gave the actual AMI Crim. 401 as follows:

In this case the State does not contend that Steven Kindall Moore acted alone in the commission of Murder in the First Degree. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense.
An accomplice is one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of an offense, solicits, advises, encourages or coerces the other person to commit the offense, or, aids, agrees to aid, or attempts to aid the other person in planning or committing the offense.

Appellant’s proffered modified version of the instruction was as follows:

In this case the State does not contend that Steven Kindall Moore acted alone in the commission of the offense of Murder in the First Degree. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense.
Causing a particular result is an element of first degree murder. A person is an accomplice in the commission of first degree murder if he has the purpose of promoting or facilitating the commission of that offense and he:
1. Solicits, advises, encourages or coerces the other person to engage in conduct resulting in the commission of murder in the first degree; or
2. Aids, agrees to aid or attempts to aid the other person in planning or engaging in the conduct that resulted in the commission of murder in the first degree.
You are advised that the term accomplice does not embrace one who had guilty knowledge or who is morally delinquent; mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of some legal duty to act, concealment or knowledge or failure to inform officers of the law is insufficient to make one an accomplice as a matter of law.

Our law is well settled that when a trial court determines the jury should be instructed on an issue, the Model Criminal instruction shall be used unless the trial court concludes it does not accurately state the law. Re: Arkansas Model Criminal Instructions, 264 Ark. 967 (1979) (Per Curiam). Thus, it is not error for a trial court to refuse to give a proffered instruction over a model instruction when both may be correct statements of the law. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). Moreover, a trial court cannot modify a model instruction unless it is clear that the model instruction incorrectly applies the law to the facts. Id.; Meador v. State, 10 Ark. App. 325, 664 S.W.2d 878 (1984).

Appellant argues that AMI Crim. 401 was an incomplete statement of the law essentially because it did not include the last paragraph of his proffered instruction. See e.g. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988). It would be a practical impossibility for the trial court to instruct the jury on the type of conduct that does not give rise to accomplice liability.

Appellant argues further that because there was conflicting testimony as to how the murder actually occurred, the trial court was required to give the proffered version. The AMI Crim. 401 given in this case was a correct and complete statement of the law on accomplice liability. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988); Ark. Code Ann. § 5-2-403 (Repl. 1993). There was evidence that appellant aided in or facilitated the commission of the murder as his truck was used to transport both defendants to the crime scene. Furthermore, there was evidence indicating appellant actually fired shots at the victim. The AMI Crim. 401 was therefore applicable to the facts of this case and the trial court did not err in refusing the proffered instruction and giving the AMI Crim. 401.

In accordance with Ark. Sup. Ct. R. 4-3(h) and Ark. Code Ann. § 16-91-113(a) (1987), we have examined the record and determined there were no rulings prejudical to appellant.

The judgment is affirmed.


author: Robert L. Brown, Justice.

text:
    Sean RIGGINS v. STATE of Arkansas
    CR 94-44
    882 S.W.2d 664
    Supreme Court of Arkansas
    Opinion delivered September 12, 1994

      Mark F. Hampton, for appellant.

      Winston Bryant, Att’y Gen., by; Joseph V. Svohoda, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal arises from a judgment of conviction for first degree murder. The appellant, Sean Riggins, was sentenced as a habitual offender to a term of fifty years. He raises essentially three points on appeal: (1) the conviction is not supported by substantial evidence; (2) the trial court erred in refusing to give a modified jury instruction on an affirmative defense; and (3) the trial court misled the jury by instructing it on first degree murder because Riggins was not the principal perpetrator of the crime. The arguments are meritless, and we affirm.

On the night of March 21, 1992, Bertie Walker got into an argument with Robert Brevard at the Wheels and Grills Carwash in Little Rock. During the argument, Brevard struck her in the face. Walker returned to her father’s house where she lived with her brother, Brian Harris. She called Robert Young, her current boyfriend, and Riggins, her former boyfriend, and told them about the altercation. She asked Riggins to bring her a gun. She also went to her father’s bedroom and got his pistol.

Young and Riggins came to the house separately. Walker and Young then drove to the carwash together, and Riggins and Brian Harris followed in Riggins’s car. Brian Harris testified that Riggins had a pump shotgun in his car. At the carwash, a white Chevrolet Impala pulled up, and Walker announced that Brevard, who had struck her, was in the car. Walker and Young approached the car from the side and began firing their pistols. Those were the fatal shots. Riggins stood in front of the car and fired his shotgun. In the opinion of Ronald Andrejack, a firearms examiner for the State Crime Laboratory, two shotgun slugs hit the front of the car. One slug glanced off the hood of the car and hit the front windshield. The driver of the vehicle, Nathaniel Merriweather, was killed. A second occupant of the car, Bernard Clark, was wounded. Following the shooting, Rig-gins immediately fled the scene. He testified that Young left with him.

Walker, Young, and Riggins were charged with first degree murder. Riggins was also charged as a habitual offender with not less than four previous felony convictions.

At trial, the State contended that Riggins’s shots did not kill Merriweather and that he was culpable as an accomplice. Riggins’s defense was that he was trying to stop Walker and Young from retaliating against Brevard and that he did not shoot at the occupants of the car but was shooting in the air or at Young or simply at the car engine in an effort to terminate the fight. Young, he stated, had pulled a gun on him before the shooting and was acting “crazy.” Another reason to stop the fight, he maintained, was that his cousin was in the car with Merriweather and Brevard.. He said he got the shotgun which he fired from a friend in the crowd.

Three spent shotgun shells were found at the crime scene. The medical examiner, Dr. William Sturner, testified at trial that Merriweather sustained nine gunshot wounds. He also testified that though it was conceivable, he could not determine whether one of the wounds was caused by a shotgun slug.

Two points argued by Riggins in this appeal can be combined into one. He contends that the State’s evidence was insufficient to convict him as an accomplice or to establish that he acted purposefully in aiding the commission of the murder. We disagree.

A motion for a directed verdict at the close of all evidence is a challenge to the sufficiency of the evidence. The test on appeal is whether there is substantial evidence to support the verdict. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). Substantial evidence is evidence that is of sufficient force and character to compel reasonable minds to reach a conclusion without resorting to suspicion and conjecture. Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994). In determining whether substantial evidence exists, we review only the evidence that supports the conviction and do not weigh it against other conflicting proof favorable to the accused. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992).

Applying these standards of review to the case at hand confirms that there was substantial evidence to support the conviction. The statute defines an accomplice as one who encourages the commission of a crime or aids in committing a crime or fails to make a proper effort to prevent it from occurring. Ark. Code Ann. § 5-2-403 (Repl. 1993). A person commits first degree murder if he purposefully causes the death of another person. Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1993).

The proof in this case abounds to sustain a conviction for first degree murder based on accomplice liability. Rig-gins was called by Walker after her fight with Brevard. He came to her house and followed her in his car with her brother to the carwash. Brian Harris testified that Riggins had a pump shotgun with him. At the carwash, he fired at the front of the Chevrolet Impala, and one slug struck the grill and another hit the hood and front windshield of the car. Three shotgun shells were found at the scene. Riggins then fled with Young. In short, the State established sufficient evidence that Riggins purposefully aided in the commission of the crime. Indeed, the jury could logically infer from the shot which ultimately struck the windshield that Riggins intended to fire into the car. The fact that the jury did not give credence to Riggins’s affirmative defense is not a basis for reversal. A jury may accept or reject testimony as it sees fit, and this jury clearly chose to disregard Rig-gins’s defense. See Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).

Riggins next urges that the trial court was in error in refusing to give his modified version of AMCI 1502-D regarding his affirmative defense. The proffered modified instruction reads:

It is an affirmative defense to any prosecution under subsection (a)(1) for an offense in which the defendant was not the only participant that the defendant:
(1) Did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid its commission.

The trial court was entirely correct in refusing this instruction because it misstates the law. See Richey v. Luffman, 311 Ark. 81, 841 S.W.2d 622 (1992). AMCI 1502-D provides a third element of proof necessary to establish an affirmative defense which was lacking from the proffered instruction and two other elements which should be given when the proof requires it:

Third: That he reasonably believed that no other participant intended to engage in conduct which could result in death or serious physical injury; and
Fourth: That he was not armed with a deadly weapon; and
Fifth: That he reasonably believed that no other participant was armed with a deadly weapon.

The model instruction is based on Ark. Code Ann. § 5-10-102(b) (Repl. 1993), which defines accomplice liability and also includes the quoted elements. AMCI 1502-D further provides that the affirmative defense be proved by a preponderance of the evidence. Because the modified instruction omitted essential elements and the standard regarding burden of proof, giving it would have patently misled the jury on the applicable law.

For his final point, Riggins argues that instructing the jury on first degree murder implied that Riggins was the primary perpetrator of the murder and that the jury was confused by it. We cannot agree.

We first observe that there is no distinction between the criminal liability of an accomplice and the person who actually commits the offense. See, e.g., Purifoy v. State, 307. Ark. 482, 822 S.W.2d 374 (1991); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). The murder instruction given was as follows:

Sean Riggins is charged with the offense of Murder in the First Degree. To sustain this charge, the State must prove beyond a reasonable doubt:
That with the purpose of causing the death of another person, Sean Riggins or an accomplice caused the death of Nathaniel Merriweather.

In addition to this instruction, AMCI 401, which states the law on accomplice liability, was given to the jury. The State admitted at the outset of the trial that its theory of the case against Riggins was only one of accomplice liability, and the proof established by both the State and defense clearly identified Walker and Young as the primary malefactors who fired the fatal shots. We discern no abuse of discretion by the trial court in giving the first degree murder instruction in conjunction with the accomplice instruction when it was made absolutely clear that the charge against Riggins was premised on accomplice liability.

Affirmed.

       Now codified as AMCI 2d 1002-AD (April 1994).


text:
    Bobby CAMPBELL v. STATE of Arkansas
    CR 94-891
    882 S.W.2d 670
    Supreme Court of Arkansas
    Opinion delivered September 12, 1994

      Tom Garner, for appellant.
    No response.
   Per Curiam.

Petitioner, Bobby Campbell, by his attorney, Tom Garner, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964; Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).


text:
    Robert L. ROCKETT III and Terrick T. Nooner v. STATE of Arkansas
    CR 94-578
    883 S.W.2d 454
    Supreme Court of Arkansas
    Opinion delivered September 12, 1994

      Joe Kelly Hardin, for appellant.
    No response.
   Per Curiam.

Robert L. Rockett, III and Terrick T. Nooner, by their attorney, have filed a motion for a rule on the clerk. We treat this motion for rule on the clerk as a motion for belated appeal. Their attorney, Joe Kelly Hardin, admits by motion that the record was filed two days before the judgment was entered due to a mistake on his part.

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

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Phillip SCHALCHLIN v. STATE of Arkansas
    CR 93-270
    885 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered September 12, 1994

      Claudell Woods, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

In 1992 Phillip Schalchlin was found guilty by a jury of rape and sentenced to thirty years imprisonment. He was represented at trial by his retained attorney Claudell Woods. No appeal was taken, and Schalchlin, acting pro se, sought a belated appeal pursuant to Criminal Procedure Rule 36.9. This court granted the motion, accepted Schalchlin’s assertion of indigency, and appointed Woods to represent him in the appeal.

In February 1994 Woods filed a motion asking that this court permit the record on appeal to be lodged belatedly on the ground that he had the record in his possession in January 1994 but thought some other person, whom he did not name, would lodge it. We denied the motion on April 11, 1994, but said that if Woods would concede that he was at fault for the late tender of the record or present some good cause for the failure to lodge the record Jn a timely fashion, the record would be lodged so that the appeal could proceed. Schalchlin v. State, CR 93-270 (April 11, 1994). Woods has not filed a second motion accepting fault or alleging some good cause for the late tender of record, and the State now seeks to have the appeal dismissed.

The direct appeal of a criminal conviction is a matter of right, and this court will not penalize a criminal defendant by dismissing his first appeal of right when his appointed counsel has failed to follow mandatory rules. Reagan v. State, 316 Ark. 511, 872 S.W.2d 396 (1994), citing Evitts v. Lucey, 469 U.S. 387 (1985). As we noted in Reagan where counsel had failed to file a second motion accepting fault or stating good cause for his failure to tender a timely record and wherein this court permitted the late filing of the record three years after the counsel’s first motion was denied, to cut off a defendant’s right to appeal because of counsel’s failure to act to perfect the appeal would violate the Sixth Amendment right to effective assistance of counsel. Reagan, supra, citing Evitts v. Lucey, supra, and Pennsylvania v. Finley, 481 U.S. 551 (1987).

An order shall be issued this day directing attorney Woods to appear before this court on Monday, October 3, 1994, at 9:00 a.m. to show cause why he should not be held in contempt for the failure to act in this matter.

Motion denied.


text:
    Phillip SCHALCHLIN v. STATE of Arkansas
    CR 93-270
    885 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered September 12, 1994
   Per Curiam.

Attorney Claudell Woods is directed to appear before this court on Monday, October 3, 1994, at 9:00 a.m. and show cause why he should not be held in contempt of this court for failure to perfect an appeal in the matter of Schalchlin v. State, CR 93-270.


text:
    Kenneth STRICKLAND v. STATE of Arkansas.
    CR 94-879
    883 S.W.2d 455
    Supreme Court of Arkansas
    Opinion delivered September 12, 1994

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

Appellant, Kenneth Strickland, by his attorney, James P. Clouette, has filed a motion for belated appeal and for a Rule on the Clerk. The record was refused when tendered to the clerk because the notice of appeal was not timely filed.

Appellant’s attorney, James P. Clouette, admits that the failure to give a timely notice of appeal was due to his personal neglect. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion pursuant to Ark. R. Crim. P. 36.9. Weaver v. State, 304 Ark. 77, 798 S.W.2d 925 (1990).

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


text:
    J.B. WHITLEY v. STATE of Arkansas
    CR 94-823
    882 S.W.2d 670
    Supreme Court of Arkansas
    Opinion delivered September 12, 1994

      William R. Simpson, Jr., Public Defender.
    No response.
   Per Curiam.

Appellant, J.B. Whitley, was convicted of theft by receiving during a bench trial on November 19, 1993. He was sentenced on January 10, 1994. Appellant’s counsel, William R. Simpson, Jr., filed a notice of appeal on February 7, 1994. However, the order appealed from in this case, the Order of Suspension or Probation, was not filed until March 24, 1994. Thus, the notice of appeal filed in this case was of no effect. Ark. R. App. P. 4; Woods v. State, 316 Ark. 705, 875 S.W.2d 58 (1994); Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992).

Appellant’s counsel has by motion regrettably admitted error in filing the notice of appeal prematurely. Therefore, we grant the motion for belated appeal and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct.


text:
    IN RE: ELECTRONIC TRANSMISSION OF THE OPINIONS OF THE ARKANSAS SUPREME COURT AND THE ARKANSAS COURT OF APPEALS
    Supreme Court of Arkansas
    Delivered May 16, 1994
   Per Curiam.

All opinions and headnotes that make up the Arkansas Reports and Arkansas Appellate Reports, except the material that is not available electronically (i.e., certain special-justice opinions and certain appendix matter), will be available for computer modem transmission each week from 4:00 p.m. Thursday afternoon until 8:00 a.m. Friday morning, when the courts are in session. Each Thursday’s material will contain that week’s Supreme Court opinions and the previous week’s Court of Appeals opinions in WordPerfect format. A password and the telephone number to call to gain access to the opinions will be provided.

The fee for this service is $100 per month. Payment will be made in advance each month to:

Supreme Court Clerk Justice Building ■625 Marshall Street Little Rock, AR 72201

Hard copies of the respective courts’s opinions are still available through the Supreme Court Clerk’s office at $.50 per page.

The Supreme Court and Court of Appeals are currently investigating the feasibility of putting opinions on Internet or a comparable service for free public access.


text:
    IN RE: ARKANSAS RULES OF CRIMINAL PROCEDURE
    Supreme Court of Arkansas
    Delivered June 6, 1994
   Per Curiam.

The Supreme Court Committee on Criminal Practice has proposed changes in the Arkansas Rules of Criminal Procedure. We published those proposed changes by per curiam order dated January 31, 1994, and asked the bench and bar for comment within 60 days from date of that order. No comments were received on the following rule changes to Rule 4.1, Authority to Arrest without Warrant, Rule 7.1(c), Arrest with a Warrant: Basis for Issuance of Arrest Warrant', and Rule 31.2, Waiver of Trial by Jury: Personal Request. We adopt those rule changes, effective immediately:

Rule 4.1 is amended to add a new subsection (e) as follows:
(e) A person arrested without a warrant shall not be held in custody unless a judicial officer determines, from affidavit, recorded testimony, or other information, that there is reasonable cause to believe that the person has committed an offense. Such reasonable cause determination shall be made promptly* but in no event longer than forty-eight (48) hours from the time of arrest, unless the prosecuting attorney demonstrates that a bona fide emergency or other extraordinary circumstance justifies a delay longer than forty-eight (48) hours. Such reasonable cause determination may be made at the first appearance of the arrested person pursuant to Rule 8.1.

COMMENT

In Gerstein v. Pugh, 420 U.S. 103 (1975), the United States Supreme Court ruled that a person arrested without a warrant is entitled to a prompt judicial determination of probable cause. In County of Riverside v. McLaughlin, 500 U.S. 44 (1991), the Court held that a judicial determination of probable cause within 48 hours of arrest will generally satisfy the promptness requirement of Gerstein, but the court recognized that a longer delay may be justified by “bona fide emergency or other extraordinary circumstance.” The change to Rule 4.1 codifies Gerstein as modified by Riverside. This new rule is to be applied retroactively to all criminal cases currently pending trial on the merits and to all direct appeals currently in progress. See Powell v. Nevada, 114 S.Ct. 1280 (1994).

Rule 7.1 (c) is amended to read as follows:

(c) A judicial officer who has determined in accordance with Rule 7.1(b) that an arrest warrant should be issued may authorize the clerk of the court or his deputy to issue the warrant.

Rule 31.2 is amended to read as follows:

Should a defendant desire to waive his right to trial by jury, he may do so either (1) personally in writing or in open court, or (2) through counsel if the waiver is made in open court and in the presence of the defendant. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury in person or through counsel shall be made and preserved.

COMMENT

The purpose of this rule is to memorialize Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993).

The proposed rule change to Rule 28.2(c), When Time Commences to Run, relating to the speedy trial rule may be in conflict with other speedy trial rules, and we refer the proposed rule to the Criminal Practice Committee for further study.


text:
    IN RE: ADMINISTRATIVE ORDER NUMBER 7: Arkansas Supreme Court and Court of Appeals Records Retention Schedule
    Supreme Court of Arkansas
    Delivered June 20, 1994
   Per Curiam.

Since Arkansas became a state in 1836, the Supreme Court of Arkansas has retained all of its records. Those of the Court of Appeals have been retained since its creation in 1979. Over time, the availability of space has become a problem. In an effort to address this problem, the Administrative Office of the Courts sought technical assistance from the National Center for State Courts, and, after a study, the consultant recommended the adoption of a records retention plan for the appellate courts. The Supreme Court then appointed an ad hoc committee to further study the issue and report its recommendations to us.

Having considered the report submitted by the Committee and pursuant to the Court’s inherent authority to adopt such a plan and Ark. Code Ann. § 16-11-111, we hereby adopt Administrative Order Number 7 entitled Arkansas Supreme Court and Court of Appeals Records Retention Schedule to become effective upon date of issuance.

ADMINISTRATIVE ORDER NUMBER 7 ARKANSAS SUPREME COURT AND COURT OF APPEALS RECORDS RETENTION SCHEDULE

SECTION 1. Statement of Policy.

Unless otherwise provided by law or as set forth herein, all records of the Arkansas Supreme Court and Court of Appeals shall be permanently maintained.

SECTION 2. Transfer of Permanent Records.

a. Physical custody of any record to be maintained permanently, may be transferred to any institution which maintains a special collections department by letter agreement upon approval by the Arkansas Supreme Court. Title to records which must be permanently maintained shall remain with the Arkansas Supreme Court.

b. The Clerk, shall permanently maintain a log of transferred records. The log shall list record series, description of records transferred, to whom transferred, and the date of transfer.

SECTION 3. Alternatives to Permanent Retention.

a. Once microfilmed in a manner approved by the Administrative Office of the Courts, any paper record may be destroyed or donated by the Clerk, regardless of the number of years stated for retention in the Retention Schedule found in Section 6 below.

b. Once the period of retention has expired, or the record has been microfilmed, whichever occurs first, the paper record may be donated, transferring full title and possession to any institution which maintains a special collections department.

c. Any interested institution shall advise the Clerk of the institution’s desire to receive notification when records become available for donation or transfer. The Clerk shall determine the recipient of the record(s) where more than one institution requests custody or custody and title. Records which are available for donation or transfer and which have not been requested within ninety (90) days of the notification shall be subject to disposal as set forth in Section 4 below.

d. The Clerk shall permanently maintain a log of donated records. The log shall list record series, descriptions of records donated, to. whom donated, and date of donation.

SECTION 4. Disposal of Records.

a. When records have been damaged or destroyed by decay, vermin, fire, water, or by other means which renders them illegible, the Clerk may dispose of the remains as provided in subsection b.

b. Records shall be disposed of by burning, shredding, recycling, or by depositing them in a public landfill.

c. Exhibits shall be disposed of as provided in Rule 3-6 of the Rules of the Arkansas Supreme Court and Court of Appeals.

d. The Clerk shall permanently maintain a log of disposed of records. The log shall list record series, descriptions of records disposed of, and method and date of disposal.

SECTION 5. Records Omitted. .

a. Any record not listed in the Records Retention Schedule shall be maintained permanently or until provided for otherwise in the retention schedule.

b. Omitted records should be brought to the attention of the Administrative Office of the Courts by letter which includes a description of the record, age of the record, and such photocopies as will assist in understanding the content and purpose.

c. Any recommendations for changes in the Retention Schedule should be brought to the attention of the Administrative Office of the Courts.

SECTION 6. Retention Schedule.

Record Type

Retention Instructions

Supreme Court and Court of Appeals Docket Books:

Retain Permanently.

Supreme Court and Court of Appeals Case Indices:

Retain Permanently.

Supreme Court and Court of Appeals Record of Proceedings:

Retain Permanently.

Record Type

Retention Instructions

Civil Case Records and Case Files: After 1940

Retain seven (7) years after case is closed, then offer for donation.

Criminal Case Records and Case Files: After 1940

Death Penalty.

Retain Permanently.

Life without Parole.

Retain Permanently.

Life.

Retain Permanently.

Felony with greater than 10 year sentence.

Retain ten (10) years after case is closed, then offer for donation.

Other criminal cases with 10 year sentence or less.

Retain five (5) years after case is closed, then offer for donation.

Civil and Criminal Records: Prior to and including 1940 Retain Permanently.

Rule on Clerk Denied Records:

Supreme Court and Court of Appeals Case Record and Case File.

Retain five (5) years.

Employment Security Division:

Case Record and Case File.

Retain three (3) years.

Supreme Court and Court of Appeals Opinions:

Original copy of Opinions and Per Curiam Opinions.

Retain Permanently.

Financial Records including:

Supreme Court & Court of Appeals, Clerk’s Office, Court Library,

Record Type

Retention Instructions

Appellate Committees, Personnel, Arkansas Attorneys, Arkansas Bar Account, Court Reporters, Client Security Fund:

Vouchers, Ledgers, Receipts, Contracts, Cancelled Checks, Bank Statements, Fees, Audit Reports, Tax Reports, Social Security Reports, Retirement Reports, Purchase Orders, Insurance Reports, and Requisition Reports.

Retain three (3) years following legislative audit.

Other Supreme Court and Court of Appeals Documents including:

All case related motions, petitions, summons, mandates, and bonds, which have been filed separately from the case file.

Retain as long as Case file is maintained.

Original actions, motions, and petitions.

Retain seven (7) years.

Per Curiam Orders.

Retain as long as Case file is maintained.

Arkansas Attorney Records:

Petitions for Licenses.

Retain Permanently.

Student Practice, Rule 15 Petitions.

Retain five (5) years.

Professional Association Members List.

Retain Permanently.

Professional Association Members Receipts.

Retain three (3) years following Legislative audit.

Record Type

Retention Instructions

Committee on Professional Conduct Files.

Retain Permanently.

Correspondence and Misc. Letters.

Retain three (3) years.

Certification of Registration.

Retain three (3) years.

United States Supreme Court Records:

US Supreme Court Mandates.

Retain as long as Case File is maintained.

US Supreme Court Writs of Certiorari.

Retain as long as Case File is maintained.

Other Records maintained by Clerk’s Office including:

Court of Appeals Motion Assignment Sheet, Court of Appeals Motion Pending file Supreme Court and Court of Appeals Syllabus, Court of Appeals Oral Argument file, Court of Appeals Submissions file, Condition of Supreme Court Docket Summary file.

Immediate Disposal.

Court Clerk Correspondence including:

Correspondence to Civil Procedure Committee, Letters to Clerk Certifying Briefs, Employment Security Division Late Filing Correspondence, Oral Arguments Confirmation Letters, Library Delinquent Accounts Correspondence.

Immediate Disposal.

Miscellaneous or General Correspondence:

Retain one (1) year.

SECTION 7. Definitions.

a. Clerk: The Clerk of the Supreme Court and Court of Appeals.

b. Immediate Disposal: The record(s) may be disposed of at the discretion of the Clerk.

c. Retain as long as Case File is Maintained: The record(s) should be returned to the case file if possible, but if this is not possible, the record shall be retained in accordance with the instmctions for retention of the case file to which it would belong.

d. Retain Permanently: The record(s) must forever be retained by the Clerk, transferred pursuant to Section 2(a), or microfilmed pursuant to Section 3(a).

e. Retain (#) years, then offer for donation: The record(s) shall be retained the specified period and then offered for donation, pursuant to Section 3.

f. Retain (#) years following legislative audit: The record(s) shall be retained the specified number of years from the date of publication of the legislative audit report.

g. Retain (#) years: The record(s) shall be retained for the specified period.

h. Case Closed: Supreme Court and Court of Appeals cases shall be considered closed once a mandate is issued or another written order of final disposition is entered.

i. Case Record: The trial court or administrative tribunal case record, and the court reporter’s certified transcript, lodged with the appellate court as provided by Rules 3-1, 3-2, 3-3, and 3-4 of the Rules of the Arkansas Supreme Court and Court of Appeals, as well as the attorneys’ briefs.

j. Case File: All correspondence, motions, petitions, orders, dispositions, and mandates issued and filed during the appellate process.


text:
    IN RE: ARKANSAS IOLTA FOUNDATION, INC., Board of Directors
    Supreme Court of Arkansas
    Delivered June 27, 1994
   Per Curiam.

The membership of the Board of Directors of the Arkansas IOLTA Foundation, Inc., is hereby modified to authorize the President of the Arkansas Bar Association to designate an agent to serve in his or her stead. Therefore the Per Curiam Order of November 9, 1987, IN THE MATTER OF THE ARKANSAS BAR ASSOCIATION, PETITION TO AUTHORIZE A PROGRAM GOVERNING INTEREST ON LAWYERS’ TRUST ACCOUNTS, 293 Ark. 511, 738 S.W.2d 803 (1987), is modified as follows:

6. The qualified recipient of interest earnings on lawyers’ trust accounts should be a newly created Arkansas nonprofit corporation to be governed by a Board of Directors comprised of the Chief Justice or designated agent; five (5) members of the lay public appointed by the Governor of Arkansas, three (3) of whom shall be representatives of low income persons from a list recommended to the Governor by the nineteen community action organizations pursuant to Act 345 of 1985; five (5) lawyers appointed by the President of the Arkansas Bar Association; and the President of the Arkansas Bar Association or designated agent; twelve (12) in all. With the exception of the Chief Justice or designated agent, and the President of the Arkansas Bar Association or designated agent, terms of the Directors should be on a staggered basis.

The Board of Directors of the Arkansas IOLTA Foundation, Inc., should amend its Bylaws and Articles of Incorporation to reflect this amendment.