author: David Newbern, Justice.

text:
    Randy Lynn ELLIS v. STATE of Arkansas
    CR 85-202
    703 S.W.2d 452
    Supreme Court of Arkansas
    Opinion delivered February 10, 1986

      Honey & Rodgers, by: Charles L. Honey, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant pleaded guilty to arson and was convicted. He contends the court erred in refusing to set aside his guilty plea and grant a new trial because he did not receive the concessions he was promised in exchange for his plea. We find no error and thus affirm.

The appellant was first tried and convicted by a jury. He filed a notice of appeal. Then he and the state agreed that the notice of appeal would be withdrawn and the judgment amended to provide the ten-year sentence would be served concurrently with a sentence of a federal court to which the appellant was subject. The judgment was amended in accordance with the agreement, and the appellant withdrew his notice of appeal.

The Arkansas Department of Correction declined to release the appellant to federal authorities. In an order to the Department of Correction to release the appellant to the federal authorities, the court made it clear the essence of the agreement between the appellant and the state, which the court was trying to implement, was that the appellant would serve his federal sentence first and be given credit for it against his ten-year Arkansas sentence for arson.

Ultimately the appellant was given a new trial because the circuit court found his right to due process under the Arkansas and U. S. constitutions had been violated as he had not been released to the federal authorities to begin serving his federal sentence for which he was to have been given credit against his Arkansas sentence.

At the new trial, the appellant pleaded guilty. His plea was negotiated on the basis of the same agreement, i.e., that his state sentence would run concurrently with his federal sentence. The judgment remanded the appellant to the Nevada County sheriff for delivery to the Arkansas Department of Correction.

The appellant then sought to withdraw his guilty plea pursuant to Ark. R. Crim. P. 26.1, stating that a manifest injustice had occurred because the state “has not, cannot, and/or will not honor its plea agreement.” In his order refusing to allow withdrawal of the guilty plea, the court recited that “[t]he Arkansas Department of Corrections is now ready and willing to deliver the Defendant to the Federal authorities.” Apparently the only reason the appellant is not receiving the benefit of his plea bargain is that the federal authorities refuse to take him. Both the court and the prosecutor have striven to see to it the agreement is carried out, but they are powerless to do so in view of the refusal of the federal authorities to cooperate by allowing the appellant to begin serving his federal sentence and thus receive credit for it against his state sentence.

We agree with the frustrated trial court that he can do no more. Rule 26.1 (a) says withdrawal of a guilty plea may be allowed to correct a manifest injustice. Rule 26.1(c) provides in pertinent part:

Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:
(iv) he did not receive the charge or sentence concessions contemplated by a plea agreement and the prosecuting attorney failed to seek or not to oppose the concessions as promised in the plea agreement

While the appellant has not yet received the benefit he anticipated from his bargain, there is no evidence or even suggestion that the prosecutor failed to seek the agreed concession. As the rule implies, no accused is guaranteed he will actually receive the benefit of his plea bargain, but he is guaranteed the prosecutor will seek or not oppose the concessions promised.

The appellant cites only Zoller v. State, 282 Ark. 380, 669 S.W.2d 434 (1984), as a case interpreting Rule 26.1 in his favor. That case is not controlling because there we found it “apparent that the prosecuting attorney failed to seek the first offender treatment the appellant was promised.” 282 Ark. at 385, 669 S.W.2d at 436.

The appellant has received cooperation in full from the prosecutor and the trial court. Should federal authorities relent, he surely will receive credit for time served there on his Arkansas sentence. The appellant gambled on the cooperation of the federal authorities and lost. There is no “manifest injustice” here, as defined in Rule 26.1, thus the trial court correctly ruled the appellant was not entitled to withdraw his guilty plea.

Affirmed.

Purtle, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Jessie REEL v. STATE of Arkansas
    CR 85-175
    702 S.W.2d 809
    Supreme Court of Arkansas
    Opinion delivered February 10, 1986

      Gerald A. Coleman, for appellant.

      Steve Clark, Att’y Gen., by: Jerome T. Kearney, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The sole question presented here is whether an earlier misdemeanor conviction of the appellant could be mentioned by the state in cross examination of a character witness presented by the appellant. We hold that it may, and thus we affirm.

The appellant was convicted of murder in the first degree for shooting and killing Tony Vellman. The appellant called Allen Helms, a farmer and part owner of a cotton gin, who testified he had been the appellant’s employer and had always regarded the appellant as a truthful and honest employee. The attorneys approached the bench and discussed whether the witness could be questioned with respect to an earlier misdemeanor conviction of the appellant. The court allowed the question. Mr. Helms testified that knowledge of the appellant’s misdemeanor theft conviction did not change his opinion. The court then gave a “limiting instruction” to the jury. The essence of the instruction was that the jury could consider the cross examination including reference to the conviction as evidence going only to the extent of the witness’ knowledge of the appellant and the weight to be given to his opinion of the appellant’s character.

Evidence of the commission of a crime the punishment for which is less than one year imprisonment may not be used for general impeachment of a witness unless it involves “dishonesty or false statement.” Uniform Rules of Evidence 609(a). However, if the accused has presented a witness to testify as to his good character, cross examination may inquire “into relevant specific instances of conduct.” Uniform Rules of Evidence 405(a). The rule places no limit, other than relevancy, on the kind of instances of misconduct with respect to which cross examination may occur.

The appellant recognizes that rule 609(a) does not apply here, as the reference to the prior conviction was not made in an attempt to impeach either the testimony of the appellant or that of the witness on the stand. His argument, rather, is that evidence of the misdemeanor conviction which could not have been used in cross examining him has nevertheless been unfairly allowed to come in through another means.

Rule 609(a) protects an accused person from cross examination with respect to minor crimes. The advisory committee’s note pertaining to the federal rule of which our rule is an exact copy pointed out this limitation was in accord with the great weight of authority which permitted impeachment on the basis of a criminal record only by reference to felonies or specific crimes involving dishonesty or false statement regardless of the punishment. 56 F.R.D. 183 at 270. That limitation has perhaps been deemed appropriate in that it protects an accused from impeachment based on, for example, juvenile offenses not in any way probative of his veracity.

The policies behind rule 405(a) are, however, distinguishable from those underlying rule 609(a). The purpose of the cross examination of a character witness with respect to a prior offense is to ascertain the witness’ knowledge of facts which should have some bearing on the accused’s reputation. If the witness does not know that an accused was previously convicted of a crime, the witness’ credibility suffers. If he knows it but then disregards it in forming his opinion of the accused, that may legitimately go to the weight to be given the opinion of the witness. The limiting instruction, such as the one given in this case, assists the jury in placing the testimony in its proper light. United States v. Gosser, 339 F.2d 102 (6th Cir. 1964); State v. Samson, 388 A.2d 60 (Me. 1978); Annot. 47 ALR 2d 1258, § 14 (1956), and later case service (Supp. 1985). See also Michelson v. U. S., 335 U.S. 469 (1948); State v. Johnson, 389 So. 2d 372 (La. 1980). Cf. State v. Johnson, 41 N.C. App. 423, 255 S.E.2d 275 (1979); State v. Casados, 193 Neb. 28, 225 N.W.2d 267 (1975).

We are not persuaded by the appellant’s argument which when extended would contend that, analogizing to rule 609(a), we should permit a character witness to be cross examined about a prior felony conviction of an accused but not as to a prior misdemeanor conviction. By presenting a character witness an accused opens the door which would otherwise be closed. If he wants us to know what his reputation is, we must be able to determine the witness’ awareness of the relevant facts. Had the authors of rule 405(a) or our General Assembly by adopting the rule, see Ark. Stat. Ann. § 28-1001 (Repl. 1979), intended to limit it as they did rule 609(a), they could easily have done so.

Affirmed.

Purtle, J., not participating.


author: Per Curiam.

text:
    Cliff JACKSON v. The Honorable Steve CLARK, Attorney General
    86-21
    703 S.W.2d 454
    Supreme Court of Arkansas
    Opinion delivered February 10, 1986

      Cliff Jackson, for petitioner.

      Steve Clark, Att’y Gen., by: Mary B. Stallcup, Deputy Att’y Gen., for respondent.
   Per Curiam.

The petitioner, Cliff Jackson, the sponsor of a proposed initiated act, submitted the proposed initiated act to respondent, the Attorney General, for certification of the ballot name and popular title, pursuant to Ark. Stat. Ann. § 2-208 (Supp. 1985). The respondent found the proposed popular name and ballot title to be insufficient and certified, instead, a revised popular name and ballot title. Petitioner now prays that this Court issue a writ of mandamus directing the respondent to certify the name and title as originally submitted or directing the respondent to reexamine the matter. We deny the writ.

The standards used to determine the sufficiency of popular names and ballot titles are well established. In Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952), we stated:

Our decisions upon the sufficiency of ballot titles have been so numerous that the governing principles are perfectly familiar. On the one hand, it is not required that the ballot title contain a synopsis of the amendment or statute. Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884 (1942). It is sufficient for the title to be complete enough to convey an intelligible idea of the scope and import of the proposed law. Westbrook v. McDonald, 184 Ark. 740, 43 S.W.2d 356, 44 S.W.2d 331 (1931). We have recognized the impossibility of preparing a ballot title that would suit everyone. Hogan v. Hall, 198 Ark. 681, 130 S.W.2d 716 (1939). Yet, on the other hand, the ballot title must be free from ‘any misleading tendency, whether of amplification, of omission, or fallacy,’ and it must not be tinged with partisan coloring.

In the case of Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984), we held that the ballot title and popular title must be (1) intelligible; (2) honest; and (3) impartial.

The popular name submitted by petitioner was:

An act to revoke Arkansas Power and Light’s franchise and exclusive territory; to establish procedures, requirements and guidelines for award of revoked public utility franchises to new franchisees; to provide for a rate-making process free and independent of closed-door deal-making and influence-peddling; to prohibit future franchisees from charging ratepayers for legal, lobbying and advertising (except public notices) expenses; and to provide for exclusive jurisdiction in chancery court of taxpayers’ illegal exaction lawsuits challenging rate increases.

The popular name certified by respondent is:

An act to revoke Arkansas Power and Light’s franchise and exclusive territory; to establish procedures, requirements and guidelines for award of revoked public utility franchises to new franchisees; to prohibit closed-door settlement conferences involving more than two parties to a ratemaking proceeding and attempts to influence the ratemaking process outside normal legal channels; to prohibit future franchisees from charging rate-payers for legal, lobbying and advertising (except public notices) expenses; and to provide for exclusive jurisdiction in Chancery Court of taxpayers’ illegal exaction lawsuits challenging rate increases.

In applying the standards for a popular name, the respondent obviously determined that the phrases “closed-door deal-making” and “influence-peddling” amounted to partisan coloring and substituted the phrase “to prohibit closed-door settlement conferences involving more than two parties to a ratemaking proceeding and attempts to influence the ratemaking process outside normal legal channels.” The respondent was unquestionably correct. The phrases, as originally submitted, were clearly calculated to influence voters to support the proposed initiated act. The respondent’s certified ballot name does not contain the partisan coloring.

The same changes were made by the respondent in the ballot title. The proposed ballot title was as follows:

An Act to Affirm the People’s Right to Revoke and Modify the Franchises and Exclusive Territories of Public Utilities and Cooperatives for Just Cause Upon Approval by a Majority of Votes in a Regular Election and to Award the Same to New Franchisee(s); to Make a Finding That Arkansas Power and Light Company Has Violated its Franchise by Misuse and to Revoke and Rescind the Franchise and Exclusive Territory of Arkansas Power and Light Company; to Provide for Interim Service by Arkansas Power and Light Company Until Such Time as a New Franchise is Awarded; to Provide for a Residual Franchise to Allow Arkansas Power and Light Company to Make Full Use of Its Property Which is Not Acquired or Condemned; to Authorize and Direct the Arkansas Public Service Commission to Award Any Revoked Franchises and Exclusive Territories of Public Utilities to New Franchisee(s) After Obtaining Competitive Bids and Conducting Public Hearings; to Establish Guidelines and Procedures for Submission of Bids by Prospective Franchisee^) and for the Award of New Public Utility Franchises by the Arkansas Public Service Commission; to Prohibit All New Public Utility Franchisee(s) Hereafter Awarded Revoked Franchises from Affiliating with a Multi-State Conglomerate or Engaging in Out-of-State Construction of Power Plants Without a Prior Three-Fourths Vote of the General Assembly; to Prohibit Utilities Awarded Future Franchises From Charging Ratepayers for Legal, Lobbying and Advertising (Except Public Notices) Expenses; to Establish Additional Specific Considerations for Commission Evaluation in Awarding New Franchises; to Confer Upon the New Franchisee(s) the Power of Eminent Domain to Condemn Property of the Revoked Franchisee and Others and to Prescribe the Use of Such Power; to Prohibit Closed-Door Deal-Making and Influence-Peddling in Utility Rate Cases and to Provide for a Civil Fine of Not Less Than $5,000.00 or More Than $ 10,000.00 and, If a Public Official, Removal From Office, As a Penalty For the Same; to Provide for Exclusive Jurisdiction in Chancery Court For Taxpayers’ Illegal Exaction Lawsuits Challenging Rate Increases; and for Other Purposes.
(Emphasis added.)

The ballot title as certified is:

An act to affirm the people’s right to revoke and modify the franchises and exclusive territories of public utilities and cooperatives for just cause upon approval by a majority of votes in a regular election and to award the same to new franchisee(s); to make a finding that Arkansas Power and Light Company has violated its franchise by misuse and to revoke and rescind the franchise and exclusive territory of Arkansas Power and Light Company; to provide for interim service by Arkansas Power and Light Company until such time as a new franchise is awarded; to provide for a residual franchise to allow Arkansas Power and Light Company to make full use of its property which is not acquired or condemned; to authorize and direct the Arkansas Public Service Commission to award any revoked franchises and exclusive territories of public utilities to new franchisee(s) after obtaining competitive bids and conducting public hearings; to establish guidelines and procedures for submission of bids by prospective franchisee^) and for the award of new public utility franchises by the Arkansas Public Service Commission; to prohibit all new public utility franchisee(s) hereafter awarded revoked franchises from affiliating with a multi-state conglomerate or engaging in out-of-state construction of power plants without a prior three-fourths vote of the General Assembly; to prohibit utilities awarded future franchises from charging ratepayers for legal, lobbying and advertising (except public notices) expenses; to establish additional specific considerations for Commission evaluation in awarding new franchises; to confer upon the new franchisee^) the power of eminent domain to condemn property of the revoked franchisee and others and to prescribe the use of such power; to prohibit closed-door settlement conferences involving more than two parties to a ratemak-ing proceeding and attempts to influence the ratemaking process outside normal legal channelsfor personal, political, financial or economic gain and to provide for a civil fine of not less than $5,000.00 or more than $10,000.00 and, if a public official, removal from office, as a penalty for the same; to provide for exclusive jurisdiction in chancery court for taxpayers’ illegal exaction lawsuits challenging rate increases; and for other purposes.
(Emphasis added.)

The action of the respondent in changing the ballot was appropriate.

The petitioner next contends that the popular name and ballot title are too lengthy as certified by respondent. In Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982), we stated that the length of a ballot title “could be a serious objection because the law recognizes that an elector’s time is limited in occupying a voting booth.” The approved title in Dust exceeded 700 words, while this certified ballot title is comprised of only 353 words and the title as proposed by petitioner contained 339 words. We have previously approved a ballot title containing 735 words. Newton v. Hall, 196 Ark. 929, 120 S.W.2d 364 (1938). The certified ballot is not unduly cumbersome.

This action was filed in this Court as an original action. The sole issue is whether the Attorney General’s refusal to certify the popular name and ballot title, as submitted by petitioner, was erroneous. .See Ark. Stat. Ann. § 2-208 (Supp. 1985). The action, solely between petitioner and respondent, has been heard on an expediated basis. Other parties who may be interested have not been given an opportunity to contest the validity of the popular name or ballot title and, consequently, this matter of public interest has not been decided on a fully adjudicated basis. Therefore, this opinion shall not prevent other interested parties from contesting the validity of the certified popular name or ballot title.

Writ denied.

Purtle, J., not participating.


text:
    James K. RIDLING v. STATE of Arkansas
    702 S.W.2d 811
    Supreme Court of Arkansas
    Opinion delivered February 10, 1986

      Wayne Emmons and John W. Leach, for appellant.
    No response.
   Per Curiam.

Appellant, James K. Ridling, by his attorney, has filed for a rule on the clerk.

His attorney, John W. Leach, admits that the record was tendered late 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 dated February 5,1979, In Re: Belated Appeals in Criminal Cases.

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

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Stephen Bishop YOUNG & Alyce Young BAILEY v. Ben K. YOUNG, Executor of the Estate of Charles Buford YOUNG
    85-236
    703 S.W.2d 457
    Supreme Court of Arkansas
    Opinion delivered February 18, 1986
    [Rehearing denied March 17, 1986.]

      John H. Bradley, for appellants.

      Fendler, Gibson & Bearden, for appellee.

       Purtle, J., not participating.

   Jack Holt, Jr., Chief Justice.

This case involves the issue of pretermitted children. The probate court found the reference in the testator’s will to “all of my heirs or other relatives” sufficient to mention the testator’s children as a class and exclude them from inheritance. It is from that judgment that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(c) and (p). We affirm.

Charles Buford Young died testate on December 8, 1983, a resident of Florida. His will, executed on August 30, 1983, was admitted to probate in Florida. On August 6,1984, an authenticated copy of the will was admitted to probate in the Chick-asawba District of Mississippi County, Arkansas, where the decedent owned an interest in land and some residential property. The will devised and bequeathed all of the testator’s property to his brother, Benjamin K. Young, with the exception of a hand-carved pipe bequeathed to a friend. The testator was also survived by two children, the appellants; three grandchildren; and his mother. The testator was divorced from the mother of his children at the time of his death. The will did not mention either of the testator’s children by name.

Appellants filed a petition on January 11,1985, alleging that they are pretermitted children under the will of Charles B. Young and are entitled to inherit the entire estate. A hearing was held on May 16, 1985 after which the trial court found the following language in the will sufficient mention of the appellants to exclude them from inheriting the entire estate as pretermitted children:

I am mindful of the fact that I have willingly and intentionally omitted to provide for all of my heirs or other relatives not specifically mentioned herein.

The pretermitted child statute, Ark. Stat. Ann. § 60-507(b) (Repl. 1971) provides:

If at the time of the execution of a will there be a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to such child or issue, and such child or issue shall be entitled to recover from the devises in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.

The probate judge, in finding the language in the testator’s will sufficient mention of the appellants as members of a class, cited three Arkansas Supreme Court cases, Taylor v. Cammack, 209 Ark. 983, 193 S.W.2d 323 (1946); Powell v. Hayes, 176 Ark. 660, 3 S.W.2d 974 (1928); and Petty v. Chaney, Ex’x, 281 Ark. 72, 661 S.W.2d 373 (1983).

In Powell v. Hayes, supra, the will in part read: “The balance of my property to my wife and heirs as law provides.” This court stated:

[A] will in which the testator provides for all of his children as a class, without expressly naming them, is a sufficient mention of his children. . . .
In its strict legal sense the word “heirs” signifies “those upon whom the law casts the inheritance of real estate.” But this construction will give way if there be upon the face of the instrument sufficient to show that it was to be applied to children . . . (citations omitted).
The word “heirs” has been held to be susceptible of two interpretations; the one which is technical, and embraces the whole line of heirs; the other, not technical, but common, and is used to denote the heirs who may come under the designation of heirs at a particular time, and it is often used in common speech as synonymous with children . . . (citations omitted).
Looking at the entire will and all the circumstances surrounding the testator, we think the word “heirs”, as used in the will, manifestly meant children. The word was not used to denote succession but to describe devises who were to take under the will.

Again, in Taylor v. Cammack, supra, we found that a statement in the testator’s will appointing an executor with “full power to sell and dispose of it [his property] [if] in his (its) judgment it is necessary for the payment of debts, or to the advantage of the estate, or of the heirs,” was a sufficient reference to the testator’s children to avoid a pretermitted child problem. In so holding, this court found that since the testator had no heirs other than his three children, it is reasonable to assume that he used the word “heirs”, in the nontechnical sense and meant thereby his children.

In Petty v. Chaney, Ex’x, supra, we found the appellant child was sufficiently provided for in the paragraph of the testator’s will creating a trust for the testator’s “descendants.” In reaching that decision we considered the will as a whole.

Applying these guidelines to the will in question, we find that the phrase “my heirs” was a reference to the appellants, excluding them from inheritance as pretermitted children. In so holding we note that elsewhere in the will the appellant’s brother and sister-in-law were specifically mentioned. The only other people who could be considered heirs or relatives were the testator’s children and grandchildren and his mother. This court has previously recognized that the word “heirs” when used in common speech is synonymous with children. Powell, supra. Considering the will as a whole, as we are required to do, it is apparent that the testator was referring to his children as his heirs when he stated in his will that he had intentionally failed to provide for that class of people. His mother and grandchildren could well fall within the “other relatives” designation. The purpose of the pretermitted child statute is not to compel a testator to make a provision for his children, but to guard against testamentary thoughtlessness. Taylor, supra. We think the testator was mindful of the fact that he had children when he wrote his will.

As to the other issues raised by the parties, the probate judge correctly applied Arkansas law in construing the will, Layman v. Hodnett, 205 Ark. 367, 168 S.W.2d 819 (1943), and we need not reach the question of the admissibility of extrinsic evidence since the will can be upheld based solely on the language used.

Affirmed.

Purtle, J., not participating.


author: George Rose Smith, Justice.

text:
    Adrian Bruce TISDALE v. A.L. LOCKHART, Director
    85-219
    703 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered February 18, 1986

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

This is a pro se petition by the appellant, an inmate in the Department of Correction, for a judgment declaring that the Department has erroneously calculated the earliest date on which the appellant will be eligible for parole. The appellee is the Director of the Department. The trial court agreed with the Department. Our jurisdiction is pursuant to Rule 29(l)(c). We affirm.

In 1970 Tisdale was sentenced to imprisonment for felony convictions. While on parole from that sentence in 1972, he was convicted a second time and received a 21-year sentence that will expire on December 8,1993. Under the laws then in effect he was eligible for parole after having served one third of that sentence, with credit for good time.

In 1977 the General Assembly adopted Act 93, which provides that persons who commit felonies after April 1, 1977, and who are classified under the act as third offenders, will not be eligible for parole until they have served three-fourths of their sentence, with credit for good time. Ark. Stat. Ann. § 43-2829 (B)(4) (Repl. 1977). Tisdale was released on parole from his second sentence in 1978. He was convicted in 1983 of a third felony and received a 10-year sentence, which is to run concurrently with the 21-year sentence and will expire on March 9, 1993. The Department classified Tisdale as a third offender and ruled that he will not be eligible for parole until he has served three-fourths of the 10-year sentence, with credit for good time, which will be later than his parole eligibility actually occurred under the earlier 21-year sentence. In fact, it was while he was on parole from that sentence that he committed his third felony.

It is true, as the Department concedes, that if Tisdale had to serve both his sentences in full, the 21-year sentence would be controlling as his ultimate release, because it would run for nine months after the expiration of the 10-year sentence. On that basis Tisdale argues that the 21-year sentence should also be controlling as to his parole eligibility.

This argument disregards not only the language of Act 93 but also its obvious intent, which was to lengthen the period of confinement before parole eligibility as the number of prior convictions increases. Everyone is charged with knowledge of the criminal law. Hence, when Tisdale was released on parole in 1978 he must be taken to have known that if he committed a third felony and was convicted, he would be compelled to serve three-fourths of his sentence before being eligible for release on parole. That Tisdale happened to be serving a 21-year sentence has nothing whatever to do with his parole eligibility under Act 93. We are certain that the legislature did not intend, as Tisdale in effect argues, that because Tisdale was serving a 21 -year sentence he is entitled to greater leniency than if he had been serving only a 15-year sentence. Act 93 changed the law and thereby gave Tisdale notice of what would happen if he should be convicted a third time. He was so convicted and must suffer the consequences imposed by law. The Department’s calculation was correct.

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Tim D.L. ADDIS v. Elizabeth ADDIS
    85-243
    703 S.W.2d 852
    Supreme Court of Arkansas
    Opinion delivered February 18, 1986

      Skinner & Heuer, by: Sam T. Heuer, for appellant.

      Highsmith, Gregg, Hart, Farris & Rutledge, by: Josephine L. Hart, for appellee.
   Robert H. Dudley, Justice.

The basic issue in this divorce case is whether the chancellor correctly divided marital property. We modify and affirm the division of property.

Tim Addis, appellant, and Elizabeth Addis, appellee, were married in 1966. They have a 22 year old son, Dean, and two minor daughters, Timberly and Katherine. Appellant is a veterinarian employed by the United States Department of Agriculture as an inspector with a base pay of $32,858.00 per year. In June 1982, appellant and Dean formed a partnership for the purpose of operating a dairy. The chancellor awarded the appellee $8,500.00 as the sum equal to one-half of appellant’s net interest in the partnership. The appellant’s first argument is that this award is in the wrong amount.

Under the Uniform Partnership Act, a partner’s rights in specific partnership assets are those of a tenant in partnership. Ark. Stat. Ann. § 65-125 (Repl. 1980). At divorce, in determining the rights of a husband or wife to a spouse’s partnership interest, a court cannot make specific awards of partnership asserts. The court must determine the value of the interest in the partnership and then award the spouse an amount equal to one-half of the value of the interest, which may be enforced by a charging order on the partnership interest. Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967).

The appellant testified that the liabilities of the partnership were $86,000.00 at the date of the trial. He testified that the assets were worth $79,000.00. An independent witness testified that the assets were worth $79,980.00. However, the independent witness did not include machinery which had an initial cost of $14,527.20, and, according to the partnership tax return, had a depreciated value of $9,210.24 at the time of the trial. In addition, his appraisal did not include permanent leasehold improvements to the land which initially cost $17,828.08, and, after straight-line depreciation over the life of the lease, had a depreciated value of $11,121.04. In order to determine the value of all the partnership assets, we accept the $79,980.00 value assigned to the assets which were appraised by the independent appraiser, and add to this figure the depreciated value of the items not appraised. Thus, we take the appraised figure of $79,980.00, and we add $9,210.24 and $11,121.04 for total assets of $100,311.28. The difference between partnership assets of $100,311.28 and liabilities of $86,000.00 is $14,311.28. Therefore, based upon our calculations, one-half of the net interest in the partnership amounts to $7,155.64. The Chancellor awarded appellee $8,500.00 as an amount equal to one-half the value of the partnership interest. Accordingly, we modify the $8,500.00 award to $7,155.64.

Appellant next argues that the trial court erred in fixing $4,000.00 as the amount of money which appellant must pay to appellee for her interest in his retirement account. He does not contend that the retirement account is not marital property.

During the last four years of the marriage, appellant worked for the Department of Agriculture and paid seven percent (7%) of his salary into a retirement account. At the time of trial, this account would entitle appellant to withdraw $8,000.00 if his employment were terminated for any reason. Appellant’s right to the $8,000.00 is not subject to divestment or forfeiture even though the complete contributory plan will not mature until appellant reaches the retirement age and elects to retire. Thus, appellant has a vested but non-mature right to the retirement funds.

Three basic methods are available for disposing of vested but non-matured retirement interests upon divorce: (1) assign the whole of the interest in the plan to the employee, and assign assets of equivalent value to the other spouse; (2) divide the interest in the plan itself on a percentage formula, and (3) reserve jurisdiction until retirement to divide the actual monetary benefit when received. See B. Goldberg, Valuation of Divorce Assets, § 9.5, at 254. The chancellor chose the first method, an appropriate method. The appellant does not question the method, but instead questions the valuation. However, at trial no actuarial valuations were offered. The trial court could value the rights only upon the evidence presented, which was the amount of cash that appellant had contributed to the fund at the time of the hearing. We affirm the trial court’s action.

In dividing the property, the trial court awarded all of the household furniture and a Honda automobile to appellee, and, to offset that, awarded a Chevrolet pickup truck to appellant. The appellant contends that the trial court erred by awarding the appellee all of the furniture. The record does not disclose error. There was no testimony about the value of the furniture, the car, or the truck. The only testimony about the value of these items is appellee’s testimony that the car is worth less than the truck. We assume the chancellor attempted to balance the awards by giving the furniture and the lesser valued car to the appellee and the more expensive truck to the appellant.

Appellant next contends that the amount of alimony is excessive. There is no merit in the argument. Appellee is 43 years old, and has no job and no job skills. She has the care and custody of the two minor children, the younger one being only 13 months old. Appellant has a job and his take-home pay from the Department of Agriculture is in excess of $1,700.00 per month. Out of that amount, the Chancellor found that $500.00 per month is necessary for support of the children and $400.00 per month for a period of five years is necessary for alimony. Apparently, the chancellor awarded alimony for the period of time he thought would be necessary for the appellee to receive training and enter into the job market.

The combined needs of the parties are greater than the income. Their testimony indicates that both need at least $1,000.00 per month, but there simply is not that much income. The standard of living of both parties will suffer. Under the circumstances, the alimony award of $400.00 per month for five years is not excessive.

Affirmed as modified.

Purtle, J., not participating.


text:
    Carleton C. WRIGHT v. STATE of Arkansas
    CR 86-11
    703 S.W.2d 850
    Supreme Court of Arkansas
    Opinion delivered February 18, 1986

      Fuchs & Villines, by; Kenneth G. Fuchs, for appellant.

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

Appellant, Carleton C. Wright, Jr., was charged with driving while intoxicated and refusing to take a breathalyzer test. He was found guilty and sentenced for driving while intoxicated, and his driver’s license was suspended for refusing to take a breathalyzer test. We affirm the conviction for driving while intoxicated but reverse the judgment suspending his driver’s license for refusing to take a breathalyzer test.

There is substantial evidence to support the charge of driving while intoxicated. Dorothy Waters, a trooper, testified that she watched appellant’s car on Interstate 40, and it was weaving. She started to follow appellant and, as they approached an overpass she watched his vehicle go off the road to the right and almost strike a guard rail on the bridge. She followed the vehicle for approximately two more miles and saw it run off the side of the road several times.

She stopped the car and noticed that appellant had an extremely heavy odor of alcoholic beverage about his person. He told her that he had been to a Christmas party and was returning home. She conducted field sobriety tests on him and reported that he performed “fair” on the alphabet test and “poor” on the finger dexterity test. She stated that he was argumentative and showed obvious signs of intoxication. In her opinion, he was under the influence of alcoholic beverages. She placed appellant under arrest for driving while intoxicated and took him to Northside detention in the North Little Rock Police Department.

Appellant contends that there was insufficient evidence to find him guilty of driving while intoxicated. On appeal, we view the evidence most favorable to the appellee and sustain the conviction if there is any substantial evidence to support it. Roberts v. State, 287 Ark. 451, 701 S.W.2d 112 (1985). There is substantial evidence to support the conviction for driving while intoxicated.

When Trooper Waters and appellant arrived at the detention center they were met by a North Little Rock officer, A1 Shultz, who advised appellant of his Miranda rights and his rights under the implied consent law, Ark. Stat. Ann. § 75-1045 (Supp. 1985). The warnings were contained in a form that Officer Shultz had personally devised. The Miranda warnings included the right to remain silent and the right to an attorney. At the bottom of the Miranda section of the form there is a blank for a signature if the accused desires to waive his rights against self-incrimination. Appellant stated that he did not want to waive his rights and was instructed to write the word “refused” on the form. The form then explains the implied consent law, § 75-1045. At no place in the “warnings” is it made clear that the right to counsel and the right against self-incrimination have no application whatsoever under the implied consent statute.

Following the implied consent explanation, the form has three questions. The first asks if the person understands all of the rights. Appellant marked “yes.” The second question asks if the person is going to take the test. Appellant left this question blank. The third question asks if the person desires an additional test. This question was also left blank. At the bottom of the section dealing with § 75-1045 there is a signature line. Appellant wrote the word “refused” again.

When Officer Shultz asked appellant if he would take the breathalyzer test, appellant told him that he felt he should contact an attorney and talk with him before taking a test. Officer Shultz directed him to a pay phone, but there was no answer at his attorney’s residence. Appellant told the officer that he wanted to wait and talk with his attorney. Shultz told him to try to phone again. Appellant did, but there was still no answer. Trooper Waters wrote out the tickets and appellant was placed in jail.

This case presents a question of first impression in Arkansas. There are, however, cases from other jurisdictions which come down on both sides of the issue. We think the better reasoned approach is that if a Miranda warning is given in connection with an explanation of the implied consent law, the police officers must explicitly inform the suspect that the Miranda rights are not applicable to the decision of whether or not to take the test. Swan v. Department of Public Safety, 311 So.2d 498 (La. App. 1975); Calvert v. State Department of Revenue, Motor Vehicle Division, 184 Colo. 214, 519 P.2d 341 (1974); and Wiseman v. Sullivan, 190 Neb. 724, 211 N.W.2d 906 (1973).

The reason is simple. Miranda rights include the right to remain silent, the right to consult with an attorney and the right to have an attorney present during questioning. In general it is not necessary to give the Miranda warnings in connection with D WI arrests. But if the state attempts to introduce proof obtained from the defendant under questioning, it cannot do so unless the warnings have been given. Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985). The rights do not apply, however, with respect to taking tests under the implied consent statute. For example, an accused does not have the right to contact an attorney before taking, or refusing to take, the test. Rights under the implied consent law include the right to refuse to take the test, but refusal results in the seizure of the driver’s license, and may result in the revocation of driving privileges for a period of six months to one year. Ark. Stat. Ann. § 75-1045 (Supp. 1985).

It is easy to understand how confusion can result when the two sets of rights are read together. In addition, in the instant case appellant was given two opportunities to try to reach his attorney, which would tend to confirm his mistaken notion that he had a right to consult with his attorney before deciding whether or not to take the test. Yet, the legislature intended that a suspect fully understand the consequences of refusing to take the test before making a decision. Therefore, when Miranda rights are given in connection with an explanation of the implied consent law, police officers must explicitly inform the suspect that the Miranda rights do not apply to the decision of whether or not to take the test. If the officers do not do so, then the suspect should not be held accountable for a refusal to take the test because of the inherent confusion caused by reading the two sets of rights together.

Affirmed in part; reversed in part.

Purtle, J., not participating.


author: Steele Hays, Justice.

text:
    Rocky CAMPBELL v. STATE of Arkansas
    CR 85-160
    703 S.W.2d 855
    Supreme Court of Arkansas
    Opinion delivered February 18, 1986
    [Rehearing denied March 24, 1986.]

      Tom F. Donovan, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.

       Purtle, J., not participating.

   Steele Hays, Justice.

The appellant was sentenced to fifty years imprisonment, with fifteen years suspended, upon a plea of guilty to a particularly brutal rape of his four year old stepdaughter. Two years later appellant petitioned for post conviction relief under A.R.Cr.P. Rule 37 based on a number of allegations. After a hearing the circuit court reduced the sentence to thirty-five years with no time suspended. The other requested relief was denied.

Appellant alleges five points for reversal: 1) the circuit judge should have recused or granted a new trial because of prejudice; 2) extrajudicial actions by the circuit judge warrant a new trial; 3) the circuit judge erred in the manner he modified the illegal sentence; 4) appellant should have been referred to the Arkansas State Hospital; 5) appellant was denied effective assistance of counsel. We affirm the order appealed from.

During the sentencing, in the course of commenting on the crime, the judge remarked, “If Mr. Campbell (the appellant) had done this to my child, I don’t know that we would be having a hearing here today.” A newspaper reporter covering the sentencing described the judge as emotional and visibly upset. Appellant insists that there can be only one reasonable interpretation, i.e. had the victim been the judge’s daughter he would have taken matters in his own hands.

We have examined the judge’s comments in their entirety. He spoke at some length about the crime and the fact that it exceeded anything he had seen while serving on the bench. We are satisified his words were intended in a figurative sense— an effort to verbalize the enormity of the crime. Nothing he said before or after the quoted comment suggests he intended his remarks to be taken literally. It was a poor choice of words, to be sure, but that can be attributed in part to the crime itself. (The child’s vagina, rectum and mouth were badly lacerated by the penetration, her entire body was bruised and patches of hair had been torn out.) And while appearance is important, it need not override reason when the reality is the judge’s overall handling of the case was not lacking in fairness. That he imposed a net sentence of thirty-five years when he could well have imposed a life sentence is a strong indication he had not lost his objectivity.

Appellant compares the case to Burrows v. Forest City, 260 Ark. 712, 543 S.W.2d 498 (1976), where the judge advised the defendant to bring his toothbrush to a revocation hearing. But the trial judge was functioning in a fact finding role in Burrows, and the remark gave the decided appearance that the issues had been predetermined.

Moreover, the judge’s comments were not derived from extra judicial sources, but were attributable only to what he had learned about the case at the sentencing hearing. An analogous situation occurred in United States v. Grinnell Corporation, 384 U.S. 586 (1966), where the Supreme Court found nothing improper when the trial judge expressed strong opinions concerning the proof.

Under Point 2 appellant notes that during a recess in the Rule 37 hearing the trial judge showed counsel for appellant a number of photographs of the victim which had been introduced at sentencing, showing the severe trauma to her entire body. We can attach no great significance to this incident. The photographs were part of the record and the judge may have intended nothing other than to show counsel, who did not represent appellant at sentencing, what he had considered in fixing the sentence as he did.

At the close of the Rule 37 hearing the judge made some observations about his deliberations prior to and at the time of sentencing, which the appellant now insists are objectionable under Unif. R. Evid. 605, which prohibits a presiding judge from testifying as a witness in the case. We reject the argument, as we do not interpret Rule 605 as prohibiting the judge at post conviction proceedings from commenting on why he imposed the sentence he did, particularly in light of the allegations that he was prejudiced.

Appellant also complains that the judge’s comments in a letter following the hearing reflect an ex parte investigation by the judge. At the hearing the public defender, who had represented the appellant at the time of sentencing, had been called as a witness for appellant but was unable to remember much about the case. The judge’s letter noted that the public defender had not been subpoenaed nor even told about the hearing, but counsel for appellant had simply encountered him by chance at the courthouse and had asked him to testify. Thus, he had no opportunity to review his file and was understandably handicapped in his recollection of the events of two years earlier. Whatever may be said of the argument, it is collateral to the issues concerning Rule 37 relief, which requires allegations of flaws so fundamental as to render the judgment void. Woodward v. State, 273 Ark. 235, 617 S.W.2d 861 (1981).

Appellant’s Point 3 concerns the original sentence of fifty years, with fifteen years suspended. He argues a sentence of fifty years is in excess of the time allowed by law. The argument is correct. Appellant pleaded guilty to a Class Y felony, which carries a sentence of ten to forty years, or life. Ark. Stat. Ann. §§ 41-1803,41-901. Thus, appellant could not properly be sentenced to fifty years. The trial judge was right to modify the sentence to thirty-five years and appellant now argues that he is entitled to the fifteen years suspended under the original sentence. We disagree with the argument. Where a sentence involves separate sentences, as with several counts for example, it is true the law generally prohibits the modification of the legal portion of the sentence. Loola v. State, 609 P.2d 35 (Ala. 1980); State v. North, 283 N.W.2d 457 (Wisc. 1979). However, when there is an error in one portion of an individual sentence, as here, the courts view the sentence as an indivisible totality and if modification is required, the court may on resentencing impose any sentence it could have lawfully imposed at the outset. People v. Wilson, 315 N.W.2d 423 (Misc. App. 1981); Herring v. State, 411 So.2d 966 (Fla. 1982); People v. Gillette, 304 N.Y.S.2d 296 (1969).

There is another reason why the modification was not erroneous — the suspension of a part of the Class Y felony sentence is prohibited under Ark. Stat. Ann. § 41-803(5):

If a defendant pleads or is found guilty of an offense other than capital murder, treason, a Class Y felony or murder in the second degree, the court may suspend imposition of sentence and place the defendant on probation.

The commentary reads:

[The statute was amended] so as to make clear that a sentence to imprisonment was the only penalty for conviction of a Class Y felony. Other sentencing alternatives, such as suspension, probation, and a fine, are no longer available in a Class Y felony.

Appellant’s Point 4 is the trial court clearly erred in finding that there was no basis in fact to justify an evaluation of the defendant at the Arkansas State Hospital under Ark. Stat. Ann. § 41 -605. Appellant cites the testimony at sentencing of Mr. Bruce Allen, a clinical psychologist on the staff of the Ozark Regional Mental Health Center. He testified that he had interviewed the appellant several times. He said appellant had intermittent explosive behavior which, he said was classified as a mental illness. But it is clear that the witness was not equating that reference to mental disease or defect as the sort sufficient to compel the court on its own to send appellant to the state hospital. Additionally, it was specifically stated by appellant’s counsel that this testimony was not offered for the purpose of raising insanity as an issue. Appellant’s own psychologist was not able to testify as to any probability that mental disease existed and there is no argument or demonstration that had the defendant undergone an evaluation he would have been able to negate that finding. Under those circumstances the court was not given “reason to believe” that mental disease or fitness to proceed were at issue.

Appellant’s Point 5 maintains he was denied effective assistance of counsel. The allegations are essentially conclusory, Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982), and we cannot say the trial court’s finding to the contrary was clearly erroneous. The issue is whether the guilty plea was entered intelligently and voluntarily, Campbell v. State, 283 Ark. 12, 670 S.W.2d 800 (1984), and there is no proof on that score.

The order is affirmed.

Purtle, J., not participating.


text:
    Bert S. HYDE, et al. v. C M VENDING CO., INC.
    85-157
    703 S.W.2d 862
    Supreme Court of Arkansas
    Opinion delivered February 18, 1986
    [Substituted Opinion on Denial of Rehearing March 17, 1986.]

      Gordon & Gordon, P.A., by: Allen Gordon-, and Peel & Eddy, by: Richard Peel, for appellants.

      Mobley & Smith, by: William F. Smith, for appellee.

       Purtle, J., not participating.

   David Newbern, Justice.

The principal question presented by the appellants is whether a covenant not to compete, contained in a contract for the sale of a business, is unreasonable due to its length of duration and thus unenforceable. The chancellor upheld the provision, and we agree that it was not of an unreasonable duration under the circumstances presented here. The appellants further contend the chancellor erred in awarding an injunction enforcing the covenant against some of them who were not parties to the contract which contained the covenant. We agree with the appellants on this point and thus modify the injunction. We also agree with the appellants’ argument that the chancellor erred in awarding damages for breach of the covenant to the extent the damages were to accrue after the effective date of the injunction, and we reduce the damages accordingly.

On cross appeal, it is contended the chancellor erred in computing the damages for breach of the covenant. If there was error, it favored the appellee and was not the error argued by the appellee. Therefore, we affirm on cross appeal. We will not address the error favoring the appellee because the appellants did not raise any question of the amount of damages in their principal brief on appeal. The appellants argue incorrectness of the court’s damages calculation only in their reply brief responding to the cross appeal. Appellants may not raise an error for the first time in the reply brief, as the appellee has no opportunity to respond. Thus we will not consider it. Meyers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984).

In 1972 Hyde Vending Co., Inc., sold its food and drink vending business to C M Vending Company, Inc. The Hyde company retained its music and some of its cigarette vending operation, but it transferred to C M its food and drink vending machines, trucks, and other equipment, all of which was listed in an “exhibit” to the contract, and exclusive vending agreements in certain listed industrial and other plant locations.

The covenant not to compete, which was drafted by Hyde’s attorneys, was as follows:

Hyde and each of its stockholders hereby agrees that from and after the closing none of them will, without C M’s prior written consent, directly or indirectly own, manage, operate, join, control, or participate in the ownership, management, operation, or control of, or be connected in any manner with, any business, either directly or indirectly in competition with C M, or become interested in any competitor of C M, within a period of five (5) years after payment in full of the purchase price as herein provided and within a radius of fifty miles of the City of Russellville, Arkansas; provided, however, that Hyde shall have the right to maintain certain cigarette vending machines and certain coin operated record playing music machines as specifically listed and described on Exhibit “C” attached hereto, and that it and its stockholders may, as a corporation or as individuals, enter into the music vending machine business, only, without being in violation of this provision; and provided further, that C M will not, during the same period herein enter into the music vending machine business; and, provided further, that either of the parties hereto may in writing waive any portion or all of this particular covenant not to compete.

The stockholders in the Hyde company were Bert Hyde and Nancy Hyde. Their son, David Hyde, was not a stockholder at the time the covenant not to compete was entered. He acquired some shares in December, 1978, and held them only about six months. Thus, David Hyde did not own shares in the Hyde company at the time the covenant was alleged to have been breached.

The C M Company successfully bid for the exclusive food and beverage vending contract at the Arkansas Nuclear One (ANO) plant in 1979. That contract expired in 1984 at which time it was obtained by Valley Vending, Inc., which was owned by David Hyde, Donna Walker, Bert Lynch and Randy Talkington. The evidence is undisputed that Bert Hyde made unsecured loans to Valley Vending and advised and assisted the business in other ways which caused the chancellor to hold the covenant not to compete had been breached. The appellants do not question the sufficiency of the evidence to establish breach of the covenant, assuming its validity.

1. Reasonableness of the Covenant

The appellants do not contest the reasonableness of the geographical coverage of the covenant. Rather they say only it is too long in duration. It began to run at the closing of the sale of the food and beverage business of Hyde to C M, and it was to continue until five years after C M had paid Hyde in full. Given the contract’s provision that C M would not be allowed to pay the debt completely until eight years after closing, the minimum duration of the covenant was thirteen years. As full payment was required within ten years, the covenant had a maximum duration of fifteen years. It thus was within the power of C M to extend the duration of the covenant, as it did in this case, by two years. We note that as the covenant was mutual in nature, the extension not only gave C M additional protection with respect to food and beverage vending, but it extended the protection afforded to Hyde with respect to music and cigarette vending.

A contract in restraint of trade, such as a covenant not to compete, is not invalid if it is reasonable with respect to time and place. Bloom v. Home Insurance Agency, 91 Ark. 367, 121 S.W. 293 (1909); Webster v. Williams, 62 Ark. 101, 34 S.W. 537 (1896). The reasonableness of duration of a covenant not to compete after sale of a business is to be judged in the light of accompanying circumstances. Madison Bank & Trust v. First National Bank of Huntsville, 276 Ark. 405, 635 S.W.2d 268 (1982). This court has upheld such covenants lasting five years, Bledsoe v. Carpenter, 160 Ark. 349, 254 S.W. 677 (1923); ten years, Madison Bank & Trust v. First National Bank of Huntsville, supra; twenty years, Robins v. Plant, 174 Ark. 639, 297 S.W. 1027 (1927); and without time limit, Wright v. Marshall, 182 Ark. 890, 33 S.W.2d 43 (1930); Hultsman v. Carroll, 177 Ark. 432, 6 S.W.2d 551 (1928). While the issue in Wright v. Marshall, supra, was apparently not the duration of the covenant, we recited the familiar rule that:

[s]uch contracts are intended to secure to the purchaser the good will of the business; and, as a guaranty, the vendor agrees not to engage in like business at that place. The courts recognize that in such cases the vendor has received an equivalent to abstain from business at the place where it was formerly conducted. [182 Ark. at 891-892, 33 S.W.2d at 44.]

The only cases cited by the appellant in which we have refused to uphold covenants not to compete have been employment contracts to which we apply a stricter standard. See Madison Bank & Trust v. First National Bank of Hunstville, supra.

The seller of a business who finances the sale by, in effect, lending the purchase money to the buyer has an obvious incentive not to compete with his buyer while some of the purchase price is still owed to him. The seller logically wants the buyer to succeed so he can pay off the debt to the seller and not jeopardize the contract of sale. We can imagine many situations in which it would be reasonable for a company just getting on its feet after paying off the seller to need more time to establish itself before being required to compete with the seller. More importantly, however, in this case the seller did not go out of the vending machine business. Hyde retained the music and cigarette business as well as a kitchen which at one point was rented to Valley Vending, Inc., when Valley began to compete with C M. Thus, unlike the seller who rids himself of the tools of his trade, the contacts, and the “good will” of the operation, Hyde remained poised to resume food and beverage vending. Under these circumstances the covenant not to compete was of reasonable duration. We are not persuaded by the appellants’ argument that C M had no protective interest, such as trade secrets, customer lists, or special licenses. In some of the sale of business cases noted above we approved covenants not to compete where the business was no less mundane or more secretive or specialized than the vending machine business, e.g., Bledsoe v. Carpenter, supra, (tailoring, cleaning and pressing); Robins v. Plant, supra, (cotton gin); Wright v. Marshall, supra, (restaurant).

2. The Injunction

The chancellor enjoined breach of the covenant. The judgment does not specify to whom the injunction is directed. To the extent it may be considered to enjoint the non-corporate, individual appellants from breaching the contract, it must only apply to Bert and Nancy Hyde, as they are the only appellants who are parties to the contract. The other non-corporate, individual appellants however, as well as Valley Vending, Inc., should be enjoined only from aiding or abetting Bert or Nancy Hyde from breaching the contract. See Daughtry v. Capital Gas Co., 285 Ala. 89, 229 So. 2d 480 (1969). As equity cases are reviewed de novo, Apple v. Cooper, 263 Ark. 467, 565 S.W.2d 436 (1978), this court may modify the injunction.

3. Damages

The appellants devote two points in their principal brief to damages. First, they contend no damages should have been awarded due to the invalidity of the covenant. As we hold the covenant to be valid, we need not go further on that point. Second, they contend the court awarded an injunction as well as damages which would result from conduct enjoined; in other words, these are damages for future misconduct in which the appellants will be unable to engage if the injunction stands. In particular, the court found C M would have gotten not only the ANO contract beginning September 1,1984, but would have obtained a renewal of it September 1,1987. The court added $22,476.30 for profits C M would lose in the three and one-half months from the renewal of the contract on September 1, 1987, until the covenant not to compete expired December 15, 1987. As the injunction will prohibit Bert and Nancy Hyde and Valley Vending, Inc., from competing with C M, they will not be allowed to renew the contract with ANO. The judgment is thus modified by reducing the damages awarded for loss of the ANO contract from $253,661.13 to $231,184.83.

The chancellor’s judgment recited that the damages were awarded against all of the appellants for “breach of the covenant.” The appellee argues that, as only Hyde Vending Co., Inc., Bert Hyde and Nancy Hyde were parties to the covenant, the damages awarded jointly and severally against the other individual appellants must have been based on some tort theory such as intentional interference with a contractual relationship. There is no indication from the record and certainly none from the judgment that any such liability was determined. As the appellants other than Hyde Vending Co., Bert Hyde and Nancy Hyde were not parties to the covenant, they are not liable for damages resulting from its breach, and the judgment must be modified in this respect as well.

4. Cross Appeal

In calculating the damages to C M for loss of the ANO contract, the court used the gross profit C M had made in the last three years of its contract with ANO and allowed a recovery of 25 percent, presumably as a reasonable net profit loss. The court found C M made a gross profit, less ten percent commission to ANO, of $924,739.31 over thirty-six months. Twenty-five percent of that figure was found to be $231,184.83. Dividing by 36, he obtained a monthly profit figure of $6,421.80.

The appellee contends the percentage to be used should have been 44.64 percent rather than 25 percent because Valley Vending, Inc., was making that much more gross profit. It is enough to say that the profits earned by the party allegedly in breach of the covenant are irrelevant to profits which would have been earned by the appellee had there been no breach. Sumlin v. Woodson, 211 Ark. 214, 199 S.W.2d 936 (1947).

5. Conclusion

The injunction is modified to enjoin appellants Bert Hyde and Nancy Hyde from further breaching the covenant not to compete and to enjoin Valley Vending, Inc., Donna Walker, David Hyde, Bert Lynch and Randy Talkington from aiding or abetting Bert or Nancy Hyde in breaching the covenant not to compete. Damages from the appellants to the appellee are reduced from $253,661.13 to $231,184.83. The decree is further modified to reflect that these damages are awarded jointly and severally against Hyde Vending Co., Inc., and its stockholders, i.e., Bert Hyde and Nancy Hyde, but not against the other appellants. The judgment of the trial court is otherwise affirmed on appeal. We also affirm on cross appeal.

Purtle, J., not participating.


author: David Newbern, Justice. Steele Hays, Justice,

text:
    Stanley LACKEY and Susan LACKEY v. STATE of Arkansas
    CR 85-108
    703 S.W.2d 858
    Supreme Court of Arkansas
    Opinion delivered February 18, 1986

      Acchione & King, by: Harold King; Lazar M. Palnick and Lisa Shipley, for appellants.

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

The appellants were convicted of rape of Theresa Baraque. Their convictions were reversed, and they were tried a second time. In the second trial the doctor who examined Theresa, and who testified in the first trial, Lackey v. State, 283 Ark. 150, 671 S.W.2d 759 (1984), did not testify. His testimony was read from the transcript of the first trial over the appellants’ objection. The appellants were again convicted, and they appeal contending, among other points, that the state should not have been allowed to read the transcript of the doctor’s prior testimony and that this error was prejudicial to the appellants’ case.

The state’s brief says that the efforts of the prosecution to obtain the doctor as a witness for the second trial . . could well [be found] ... to have been, in the words of the court in Satterfield v. State, 248 Ark. 395, 399, 451 S.W.2d 730, 733 (1979), ‘far too feeble to constitute “good faith effort.” ’” In view of this concession, we need not review here the prosecution’s efforts to procure the doctor’s presence. As in Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980), the search for the doctor who had examined the alleged victim, testified in the first trial, and then moved from Arkansas to another state, came too late to permit use of the Interstate Rendition of Witnesses Act, Ark. Stat. Ann. §§ 43-2005 through 43-2009 (Repl. 1977). But in Holloway v. State, supra, we held the erroneous admission of the doctor’s testimony was not prejudicial, and we affirmed the rape conviction. In response to Holloway’s argument that the doctor’s prior testimony should have been ruled inadmissible, we said:

The doctor’s testimony was, however, not critical. The State’s misconduct was, therefore, harmless error. He only testified the women had recently had sex. A rape victim’s testimony need not be corroborated. See, Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973). Satterfield, supra, does not demand reversal. There, the missing witness was a suspected accomplice and his presence particularly important. We find no prejudice here. The witness had already said all he could be expected to say.
The same holds true regarding the argument that the testimony from the first trial was not admissible because the witness had not been properly and fully cross-examined. Holloway’s defense was he did not rob the Leather Bottle, nor rape the women. What more could have been asked of the doctor who said the women had had sexual intercourse within six hours?
Just as we believe there was no violation of the Uniform Rules of Evidence, we also believe there was no violation of the confrontation clause of the Sixth Amendment. That clause is not absolute. It does not require that every criminal defendant be allowed to confront every witness against him every time he is tried. . . . Neither was due process violated. [268 Ark. at 28-29, 594 S.W.2d at 4.]

In the case before us, the doctor’s testimony was more extensive than the doctor’s testimony in Holloway v. State, supra. Here, the doctor’s prior testimony, which was read to the jury, described at length what the victim had said about the details of the alleged rape on the night she was examined by him. He testified he had found blood and sperm in the vaginal area and that Theresa was crying and appeared to him to be upset, and that he prescribed valium to calm her anxiety. On cross-examination he testified he found no evidence of bruises, lacerations, or other trauma usually associated with rape. He said further that the sperm he examined from Theresa was non-motile, and then he testified at some length about the implications of its non-motility, noting that sperm can remain motile up to five days in the vagina. He testified about the fact that Theresa’s blood pressure was normal and about the presence of the blood being possibly related to the menstrual cycle.

Given the range of the doctor’s testimony read from the first trial transcript, we cannot agree that Holloway v. State, supra, is controlling. While we do not renege on our conclusion that the Sixth Amendment does not require confrontation with every witness every time a criminal defendant is retried, we find this witness’ testimony to have been so significant as to require that the jury in whose hands the fate of the appellants rested be allowed to observe the confrontation so as to see the witness’ demeanor and make its determinations with respect to the matters addressed by him. In Barber v. Page, 390 U.S. 719 (1968), the Supreme Court said:

The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. [390 U.S. at 725.]

Where the prior testimony of the witness is as extensive and significant as that of the doctor in this case, the reading of it to the jury, where the state’s showing of the unavailability of the witness is insufficient, is prejudicial.

As there may be another trial of these appellants, we will mention briefly two other points argued. The appellants wanted to question Theresa about her prior sexual conduct. They argue it was relevant because of the doctor’s statement that the sperm he found was non-motile and that sperm could remain motile up to five days in the vagina. The court properly denied their motion, as it was well within his discretion under Ark. Stat. Ann. § 41-1810.2 (Rep. 1977 and Supp. 1985) to determine the relevancy of the question and balance it against its possibly prejudicial effect on the prosecution’s case. Cf. Bobo & Forrest v. State, 267 Ark. 1, 589 S.W.2d 5 (1979).

Theresa’s testimony was that Susan Lackey said to her she was assisting her husband Stanley Lackey in raping Theresa because it was the only way she could keep her husband “alive.” The prosecution produced evidence that an ambulance had been called to the Lackey’s home the night before the rape because Stanley’s mother thought he had taken an overdose of a nonprescription drug. The appellants argue this testimony is inadmissible because it shows only an unrelated prior bad act on the part of Stanley. The state contends, and we agree, it is relevant to showing Susan’s motive for participation in the crime. Even if motive is not an element of the crime charged, it may be proven. Synoground v. State, 260 Ark. 756, 543 S.W.2d 935 (1976).

Reversed.

Purtle, J., not participating.

Holt, C. J., and Hays, J., dissenting.

Steele Hays, Justice,

dissenting. I disagree that this case should be reversed a second time. While it is difficult to argue with the majority view that the state confessed error with respect to the good faith effort to produce Dr. Brunson, the concession is more tacit than real. But if it was conceded, it was done in reliance on the precedent of Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980) where, on virtually identical facts, we said the error was harmless.

Indeed, the medical testimony in Holloway was far more prejudicial to the defense than in this case. In Holloway, two female employees of the Leather Bottle accused the defendant of raping them during a robbery that occurred around 2:00 a.m. They were examined by Dr. David Frueh at 5:00 a.m. In this case Dr. Brunson testified that Theresa Baraque, while her blood pressure was normal, “appeared to be upset and was crying.” He found traces of blood in the vaginal vault, which he said could have been attributed to irregular menstrual flow. In both cases the doctors noted an absence of trauma, bruises, lacerations and neither testified that the women had been raped. The record in Holloway tells us nothing about the emotional state of the two women, but the fact that Theresa Baraque was crying is hardly a basis for distinguishing the cases. The crucial difference between the two cases is Dr. Brunson found non-motile sperm which he said could have been acquired over a span of five days, whereas in Holloway, Dr. Frueh testified the two women had had sexual intercourse within the preceeding six hours. Under the circumstances of Holloway, that testimony was particularly damaging to the defendant, whereas in the case before us the defendant was able to argue that the non-motile sperm could have come from Theresa’s boyfriend during the five day interval.

But since the majority insists on distinguishing Holloway, it should I think be willing to examine the efforts by the prosecution to produce Dr. Brunson to determine whether that attempt met the test of good faith. Consideration for a fifteen year old victim who is forced to relive a wrenching ordeal yet a fourth time warrants that much effort on our part, at least in view of the tenuous grounds on which this case has twice been reversed.

The deputy prosecutor to whom this case was assigned was hired January 1,1985 and began efforts to locate Dr. Brunson in mid-January for a February 8 trial date. She got no information from the Jefferson Memorial Hospital, the only lead she had. They knew only he had been gone about a year. She contacted the Arkansas State Medical Board and learned nothing. She again contacted Jefferson Memorial and learned that Dr. Brunson might have gone to Alabama. She began contacting the Alabama Medical Board and learned that he might have located in Montgomery. That produced nothing until someone told her he could be in Birmingham. She began calling individual clinics listed in the Birmingham directory and through that rather arduous method, found him at a local clinic. Dr. Brunson at first indicated a willingness to come for trial, then equivocated and, when it was too late for compulsory measures, he declined. In contrast, the witness in Satterfield v. State, 248 Ark. 395, 451 S.W.2d 730 (1979), cited by the majority, was never contacted after it was learned he was in Kentucky. The Satterfield opinion tells us that a mere phone call to the witness would have succeeded in getting him to Arkansas for the trial, “even at the late date on which it was discovered he was in Kentucky.” (Satterfield at p. 400.) The trial court found a good faith effort to produce Dr. Brunson and I disagree that we can label that finding clearly erroneous. I believe the case should be affirmed on the strength of either Holloway v. State, supra, or Satterfield v. State, supra.

When three trials are required (assuming there is not to be a fourth) before we can say every rule has been kept, every theory satisfied, our system is in danger of collapsing under its own weight.


text:
    Kathy MULLEN v. Homer COUCH
    85-235
    703 S.W.2d 866
    Supreme Court of Arkansas
    Opinion delivered February 18, 1986

      Laser, Sharp & Mayes, P.A., for appellant.

      Harold King, for appellee.
   David Newbern, Justice.

The question presented here is whether there is a limit on the time within which a court may grant a timely motion for a new trial. We hold that the trial court loses jurisdiction to rule on the motion ninety days after the judgment is filed with the clerk. Therefore, we reverse the court’s granting of the new trial motion on July 1,1985, with respect to a judgment filed February 4, 1985.

Ark. R. Civ. P. 59 is devoted to the subject of the new trial motion, and it contains short limits on moving for and responding to the motion for a new trial after a judgment. No provision is made in that rule for requiring the court to rule on the motion within a stated time. The appellant relies instead on Ark. Stat. Ann. § 27-2106.4 (Repl. 1979). That statute required that the moving party request a hearing on the new trial motion within thirty days from filing the motion. It provided further that unless the motion had been “presented” and the court had taken it under advisement within the thirty-day period the motion would be deemed to have been disposed of at the end of the thirty days, and the time for filing a notice of appeal would begin then.

That statute has obviously been superseded by Ark. R. App. P. 4(c) and its very similar provisions on when time begins to run on filing a notice of appeal after a motion for a new trial has been made or ruled on. However, the statute contained as its last sentence the following not found in the rule:

The expiration or lapse of a term of court or commencement of a subsequent term shall not affect the power of the court to take any action herein provided, or the time for filing notice of appeal.

The appellee argues that sentence favors his position, as it suggests there are no limits at all on when the court must rule on the new trial motion. We disagree because ruling on the motion is not “any action herein provided” as it is not governed by the statute. Additionally, we held in Jones v. Benton County Circuit Court, 260 Ark. 893, 545 S.W.2d 621 (1977), that the court could not rule on a new trial motion when the term of court in which it was made had ended and there was no evidence that the motion had been “presented” or “taken under advisement” within the time prescribed in § 27-2106.4. See also Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984).

While we are no longer governed by terms of court in this respect, we do have a rule providing that a court must act within ninety days of the filing of the judgment with the clerk if it is to modify or set aside its judgment, Ark. R. Civ. P. 60(b), unless certain conditions, not relevant here, exist. Ark. R. Civ. P. 60 (c). Although these provisions are not found in Rule 59, they apply to the power of the court to grant a new trial. The granting of a new trial necessarily involves the setting aside of any judgment entered in the case. Rule 60(c) clearly recognizes that fact when it refers to grounds for setting aside a judgment after ninety days from its filing “[b]y granting a new trial” and “[b]y a new trial granted.” See Rule 60(c)(1) and (2).

Reversed.

Purtle, J., not participating.


author: Dennis L. Shackleford, Special Justice.

text:
    FIRST BANK AND TRUST OF JONESBORO v. Nick VACCARI, et al.
    85-147
    703 S.W.2d 867
    Supreme Court of Arkansas
    Opinion delivered February 18, 1986

      Wright, Lindsey & Jennings, for appellant.

      Bill D. Etter and David D. Coop, for appellee.
   Dennis L. Shackleford, Special Justice.

First Bank and Trust of Jonesboro (Bank) appeals from a verdict and judgment awarding appellee, Walnut Ridge Flying Service, Inc., (Flying Service), $28,965.00 representing its loss for customer checks which were cashed by the Flying Service bookkeeper on forged endorsements. The Bank contends that it was entitled to a directed verdict on the ground that there was no substantial evidence that it failed to act in accordance with reasonable commercial standards. We agree with the trial judge’s conclusion that the proof presented a jury question.

The facts are not essentially in dispute. The Flying Service performs agricultural aviation services in the Walnut Ridge, Arkansas, area. Barbara Brunson, a bookkeeper with check-writing authority since 1966, was discovered in 1977 to have embezzled her employer’s account by signing checks. She was terminated but immediately rehired, without check-writing authority, after repayment of the loss.

Soon thereafter Brunson opened an account for her own use at the Bank in the name of “Walnut Ridge Flying Service” furnishing her employer’s tax I.D. number and correct address in Walnut Ridge. She designated herself as the sole signatory on the account. During the next several months she deposited about $41,000 in checks of the Flying Service into the account and appropriated the funds to her own use.

Nick Vaccari, owner of the Flying Service, became suspicious about the accounts receivable payments in the summer of 1978, but did not follow up until November 1978 because of the demand on his time in the business. He learned a customer check had been deposited in the Bank at Jonesboro and not to the regular bank account in a local bank. After being confronted by Vaccari, Brunson confessed. An audit revealed the loss.

A former employee of the Bank testified she was the new-accounts clerk and had opened the account. The signature card showed no residence address, the business address was designated as a post office box,, and no telephone number was listed. She recalled nothing out of the ordinary, although without further inquiry an account was opened for an out-of-town “flying service” by a young woman.

Expert testimony offered by the Bank from an executive of a competing local bank was that the Bank followed the correct procedure in opening the account and acted in accordance with reasonable commercial standards. On cross-examination, this witness stated new-accounts clerks would be more inquisitive about an out-of-town account. He said standards would be different in New York City for example, a lot more lax in Jonesboro, and would be dictated by the market place and previous experience.

The Flying Service alleged a cause of action for conversion. The Bank contended it acted in good faith and in accordance with reasonable commercial standards under Ark. Stat. Ann. § 85-3-419(3) which limits liability to the amount of any proceeds remaining in the bank. The Bank further contended that Vaccari was negligent and substantially contributed to the forgery citing Ark. Stat. Ann. § 85-3-407.

The burden of proof was on the Bank to show it acted in a commercially reasonable manner. Clark v. Griffin et al., — Ind. App_, 481 N. E. 2d 170 (1985). If, at trial, the Bank meets its burden of showing its adherence to reasonable commercial standards in dealing with the account and of presenting evidence of Vaccari’s negligence, the jury would be authorized to find the Flying Service is precluded from denying the forged endorsements and there could be no recovery. Trust Co. of Georgia Bank of Savannah, N.A. v. Port Terminal & Warehousing Co., 153 Ga. App. 735, 266 S.E.2d 254 (1980). The question of Vaccari’s negligence in permitting the embezzling bookkeeper’s forgeries to go undiscovered is irrelevant until the Bank establishes it acted according to reasonable commercial standards. Amer. Machine Tool Distributors Assoc. v. Nat’l Permanent Fed’l Savings & Loan Assoc., 464 A. 2d 907 (D.C. 1983).

A situation with strikingly similar facts involving a claim of conversion was considered in Hydroflo Corp. v. First Nat’l Bank of Omaha, 217 Neb. 20, 349 N.W.2d 615 (1984). There, the corporation, named as payee on checks, brought an action against the bank to recover amounts paid on checks to a bank customer who had wrongfully endorsed the checks and deposited the proceeds to his account. An Omaha sales manager of a small Pennsylvania corporation opened a corporate checking account in the name of his employer without its knowledge, and furnished the bank with a signature card containing his signature. Checks of Hydroflo were deposited to the account and withdrawn by the sales manager. The bank’s U.C.C. defense was that it acted in accordance with reasonable commercial standards. In holding that a jury question was presented, the Court declared that it is incumbent upon a depository bank seeking immunity to plead and prove its affirmative defense and “whether or not a bank acted in a commercially reasonable manner is a question of fact.”

There are decisions that as a matter of law it is commercially unreasonable for a bank to accept for deposit in an individual account a check made payable to a corporation without first ascertaining, or at least making an inquiry, as to the authority of the depositor/endorser. Aetna Casualty & Surety Co. v. Hepler State Bank, 6 Kan.App.2d 543, 630 P.2d 721 (1981). In our case Brunson forged an endorsement on a check payable to Walnut Ridge Flying Service, Inc., and deposited the proceeds to her account. Likewise, a Georgia court determined a bank to be not in accordance with reasonable commercial standards when it failed to inquire to ascertain authority of a second corporation (collection agency) to endorse and deposit the payee corporation checks. Nat’l Bank v. Refrigerated & Co., 147 Ga.App. 240, 248 S.E.2d 496 (1978).

Where reasonable minds may differ as to the conclusion or inferences to be drawn from the evidence, such issues must be submitted to the jury. Home Mutual Fire Ins. Co. v. Cartmell, 245 Ark. 45, 430 S.W.2d 849 (1968). It would be error to direct a verdict in such circumstances. Huffman Wholesale Supply Co. v. Terry, 240 Ark. 399, 399 S.W.2d 658 (1968). On the record as a whole we find substantial evidence to support the verdict.

Affirmed.

Robert F. Morehead, Special Justice, concurred in this decision.

Hickman, J., not participating.

Purtle, J., not participating.

Hays, J., not participating.


text:
    Jesse Ray WILLIAMS v. STATE of Arkansas
    703 S.W.2d 459
    Supreme Court of Arkansas
    Opinion delivered February 18, 1986

      Cross, Kearney & McKissic, by: Jesse L. Kearney, for appellant.
    No response.
   Per Curiam.

Appellant, Jesse Ray Williams, by his attorney, has filed for a rule on the clerk.

His attorney, Jesse L. Kearney, admits that the record was tendered late 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 dated February 5,1979, In Re: Belated Appeals in Criminal Cases.

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

Purtle, J., not participating.