author: David Newbern, Justice. Tom Glaze, Justice, dissenting. Per Curiam. Tom Glaze, Justice,

text:
    CITY OF JONESBORO v. Floyd VUNCANNON, et ux.
    91-319
    837 S.W.2d 286
    Supreme Court of Arkansas
    Opinion delivered July 20, 1992
    [Supplemental Opinion on Denial of Rehearing September 28, 1992.]

      Penix, Penix & Lusby, by: Bill Penix and Robin Nix, for appellant.

      Kelley Webb, for appellees.

      Hays, Glaze, and Corbin, JJ., would grant rehearing.

   David Newbern, Justice.

This is an inverse condemnation case. The Circuit Court awarded the appellees, Floyd and Cathy Vuncannon, $5,282.90 in damages for land taken by the appellant, City of Jonesboro. The Vuncannons’ claims for $105,041.68 for lost rental, removal of debris, increased, interest costs, interest accrued, and attorney’s fees were denied on the ground that they were based on'tort liability from which the City was immune. The City appeals from the condemnation award, raising a number of issues, all of which are placed under the rubric, “abuse of discretion.” The Vuncannons cross-appeal from the denial of the other claims. We find no abuse of discretion and affirm the inverse condemnation award. We also affirm on cross-appeal.

The Vuncannons own two contiguous partial lots, one on either side of a whole lot, also owned by them, in a platted area known as Turtle Creek Ranch Addition in Jonesboro. The north property line of all three parcels abutts Nettleton Avenue. The Vuncannons wished to build a shopping center. To do so, using the lot and the two partial lots, regulations required replatting the three parcels into one lot. Otherwise, no building could be constructed absent fire walls built on the property lines between the lot and the partial lots.

When the Vuncannons applied to have the land replatted, their survey showed the north border of their lot and partial lots to be 41 feet from the center of Nettleton Avenue. The Jonesboro Metropolitan Area Planning Commission (MAPC) consulted its major street plan which showed the Nettleton right of way to be 100 feet, thus requiring a distance of 50 feet from the center line of Nettleton to the Vuncannons’ property. MAPC refused to authorize the replatting unless the Vuncannons dedicated the additional nine feet as street right of way. Here is a chronology of events.

March 10, 1988: The Vuncannons first presented the request for replatting the three lots to MAPC. MAPC approved the request on the condition the additional nine feet be dedicated.

May 12, 1988: The Vuncannons returned to MAPC for reconsideration. MAPC refused.

October 11, 1988: The Vuncannons again requested MAPC reconsideration. MAPC refused.

November 21, 1988: The Vuncannons attempted to appeal to the Jonesboro City Council. The City Council refused to hear the appeal.

January 13, 1989: The Vuncannons filed suit in Circuit Court alleging that the city of Jonesboro inversely condemned the property.

April 7, 1989: The Vuncannons and the City entered into a stipulation by which the Vuncannons would deed the nine feet to the City and the City would replat the property and issue a building permit. The stipulation stated it was not meant to affect in any way the outcome of the pending action. Mr. Vuncannon testified he sent the deed to the City after the stipulation was entered and soon thereafter the property was replatted and a building permit was issued.

December 1989: The Vuncannons completed construction of the shopping center which, Mr. Vuncannon later testified, was built nine feet further from Nettleton Avenue than originally planned.

June 19, 1990: The Circuit Court “remanded” the case to the City for reconsideration of the replatting on the basis that denial of the replatting only on the basis of the refusal to convey the nine feet was a taking without just compensation.

September 17, 1990: The City Council discussed the matter, quitclaimed the nine feet back to the Vuncannons, and when asked, the Mayor stated the City refused to pay damages for temporary taking of the property.

October 3, 1990: The Vuncannons appealed to Circuit Court the City’s refusal to pay damages.

February 20, 1991: The Circuit Court entered judgment in favor of the Vuncannons in the amount of $5,282.90, as the fair market value of the nine feet taken by the City, ordering the Vuncannons to deed the property to the City. It was found, however, that the lost rental, debris removal, increased interest costs, interest accrued, and the attorney’s fee were for tort recoveries to which the City was immune.

The City contends (1) the Circuit Court did not have the power to conduct a de novo review of the city council’s action as there was no final action by the City, (2) The Vuncannons did not exhaust administrative remedies prior to appealing to the Circuit Court, (3) Ark. Code Ann. 14-56-117(b)(2)(B) (1987) is not unconstitutional, (4) there was no inverse condemnation because the property is not worthless as a result of its actions, and (5) there was no proof that the nine feet was ever taken and in fact the Vuncannons are currently utilizing the property.

The Vuncannons argue the Trial Court was correct in finding the City took the nine feet and, therefore, owed the fair market value of the land. They contend (1) there was a final order of the City Council which the Circuit Court could review de novo, (2) all administrative remedies were exhausted as they were told to wait six months before returning for reconsideration of the replat denial, (3) the Trial Court did not find Ark. Code Ann. § 14-56-117(b)(2)(B) unconstitutional, but rather applied the law on controlled access facilities, Ark. Code Ann. § 27-68-100 through 27-68-111 (1987), (4) inverse condemnation occurred because the building was constructed nine feet further back due to the dispute and that nine feet was not useable or being used by the Vuncannons, and (5) the property was taken to construct a five-lane street but there was no evidence that a five-lane street will ever be built.

1. De novo review

The City contends the Trial Court erred in conducting a de novo review of the appeal from the City Council rather than seeking to ascertain whether the City Council abused its discretion, the standard to be used in reviewing the actions of a legislative body.

Arkansas Code Ann. § 14-56-425 (1987) provides for a de novo review in circuit court of appeal of final actions of administrative and quasi-judicial agencies. Although de novo review of a legislative act is unconstitutional, Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W.2d 74 (1971), it is proper to review de novo a final action of an agency acting in an administrative or quasi-judicial mode. See Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir. 1980). It is clear that the appeal to the Circuit Court here was from action of the City Council on application of its zoning regulations rather than from the enactment of them.

2. Exhaustion of administration remedies

The City next argues the Vuncannons did not exhaust administrative remedies prior to seeking a remedy in court, citing Chaney v. East Texas Motor Freight, Inc., 233 Ark. 675, 346 S.W.2d 513 (1961), and Consumer’s Co-op Assn. v. Hill, 233 Ark. 59, 342 S.W.2d 657 (1961). It is pointed out that after MAPC denied the replatting on October 11, 1988, the City Council voted on November 21, 1988, not to consider the appeal because the appeal had not been filed with the City Clerk within the 30 day time limit required by Jonesboro City Ordinance No. 2.20.06.

The City Council minutes of November 21, 1988, were introduced as Exhibit D at p. 136 of the record of trial. The relevant paragraph of the minutes is as follows:

The Chairman of the Street Committee, Mr. Bridger, introduced a request from Kelley Webb, Attorney for Floyd Vuncannon regarding property located at East 56.25 ft. of Lot 3, all of Lot 4, and the West half of Lot 5, of Charles A. Stuck’s Turtle Creek Ranch Addition, to the City of Jonesboro, Arkansas, as shown by plat and record in Deed Record Book #48 on Page 240. Mayor Brodell stated the matter was first heard by the MAPC on March 10, 1988. The Appeal request was not filed with the City Clerk in the required 30-day time limit by ordinance. Mr. Webb presented the matter on behalf of Mr. Vuncannon on October 11, 1988, however, the MAPC voted unanimously not to reconsider the request. Mr. Park moved, seconded by Dr. Strauser not to reconsider the request. A roll call was taken and all voted aye.

It is thus clear that the reference to failure to meet the 30-day appeal deadline had to do with the original request to MAPC and not to its second decision in which it denied reconsideration. The fact that the City Council did not vote on the matter until November 21, 1988, does not mean that the appeal of the October 11, 1988, decision was not lodged within 30 days. The City thus has failed to show that the Vuncannons did not exhaust their administrative remedies.

3. Statutory authority

The heart of the City’s appeal lies in the argument that it had statutory authority to force the Vuncannons to dedicate property for the eventual widening of Nettleton Avenue.

The first citation is to Ark. Code Ann. § 14-56-401 (1987) which provides that Subchapter 4 of Chapter 56 of Title 14 is to be interpreted liberally and provides the general powers and duties of a planning commission. It states that a commission may draw up a master street plan.

Next, the City cites Ark. Code Ann. § 14-56-412(e) (1987) which gives a city planning commission authority to regulate to implement its master street plan. Subsection (g) of § 14-56-412, however, provides for referral to the body responsible for acquisition of the land necessary to carry out the plan. It states, in part:

After adoption and filing as provided of a . . . master street plan, no parcel of land indicated by the plan which lies within the bounds of a . . . mapped street shall be privately developed until the public board commission, or body having jurisdiction or financial responsibility for the reserved area shall have refused to execute a written option or to file suit for condemnation to acquire the area ....

This Statute obviously contemplates purchase or condemnation of land by the City. In either case, the owner is to be compensated by money rather than waiver of some safety regulation, such as a fire wall requirement, completely irrelevant to the acquisition of land to widen a street.

The last of the statutes relied on by the City is Ark. Code Ann. § 14-56-417(b)(2)(B) (1987). Section 14-56-417 is captioned, “Regulations to control development of land.” The entire section provides:

(a) (1) Following adoption and filing of a master street plan, the commission may prepare and shall administer, after approval of the legislative body, regulations controlling the development of land.
(2) The development of land includes, but is not limited to:
(A) The provision of access to lots and parcels;
(B) The extension or provision of utilities;
(C) The subdividing of land into lots and blocks; and
(D) The parceling of land resulting in the need for access and utilities.
(b) (1) The regulations controling the development of land may establish or provide for the minimum requirements as to:
(A) Information to be included on the plat filed for record;
(B) The design and layout of the subdivision, including standards for lots and blocks, street rights-of-way, street and utility grades, and other similar items; and
(C) The standards for improvements to be installed by the developer at his own expense such as street grading and paving; curbs, gutters, and sidewalks; water, storm, and sewer mains; street lighting; and other amenities.
(2) (A) The regulations may permit the developer to post a performance bond in lieu of actual installation of required improvements before plat approval.
(B) They may provide for the dedication of all rights-of-way to the public.
(3) (A) The regulations may govern lot or parcel splits, which is the dividing of an existing lot or parcel into two (2) or more lots or parcels.

Section 14-56-417 thus gives a planning commission authority to promulgate a regulation “controlling development of land” which requires dedication of rights-of-way to the public. If a replatting of land to combine lots as the Vuncannons wished to do constitutes “development of land” under a valid regulation, then the Statute could provide authority for requiring reasonable rights-of-way dedication. Obviously the “development of land” contemplated in the subsection (a)(2)(A) through (D) has to do with land which is not yet developed. That was the situation in Newton, Circuit Clerk v. American Security Co., 201 Ark. 943, 148 S.W.2d 311 (1941), which is cited by the City. No one questions the power of the City to require dedication of rights-of-way in land which is the subject of an initial subdivision plat. References in the record make it unmistakable that the Vuncannons’ property is part of land which has already been platted as Turtle Creek Ranch Addition.

We do not know if the Jonesboro Planning Commission has a regulation governing the replatting of land. We have no idea whether a replatting of land which has already been the subject of a platted addition constitutes “development of land” under an applicable regulation. The point is that the Statute gives authority to promulgate a regulation. It does not directly authorize taking land without compensation, nor does it authorize the trading of a waiver of a zoning fire safety requirement for a right of way dedication.

4. Constitutionality and other statutes

We agree with the City’s contention that § 14-56-417 is not unconstitutional per se. At the end of the final hearing in the Circuit Court, the Judge said he thought it was unconstitutional. We do not know if he meant that there was a lack of due process because the City had not shown it had enacted a regulation in accordance with the Statute or possibly that there was no showing that some regulation existed prior to the Vuncannons’ acquisition of the land. See Lucas v. South Carolina Coastal Council, _ U.S. _ (No. 91-453, decided June 29, 1992).

We decline to address the constitutionality point because we need not go that far. Our holding is simply that the City has demonstrated no authority for what it attempted to do.

We also agree with the City’s point the Vuncannons are wrong in arguing that Ark. Code Ann. §§ 27-68-100 through 27-68-111 (1987) control this situation. That Subchapter of Title 27 deals with limited access highways, and there is no showing that Nettleton Avenue is such a highway. Again, however, the error in argument does not cure the basic deficiency of the City’s position on appeal.

5. Cross-appeal

We understand and sympathize with the losses of which the Vuncannons complain on cross-appeal. We concur in the Trial Court’s assessment that the Vuncannons were caught up in a bureaucratic delay. They have, however, presented no statutory or common law authority dealing directly or indirectly with their expenses and attorney’s fee and permitting the Trial Court to make any award other than just compensation for the loss of their property. Absent a showing of such authority, we will not reverse the Trial Court.

Affirmed on Appeal and Affirmed on Cross-Appeal.

Hays, Glaze, and Corbin, JJ., dissent.

Tom Glaze, Justice, dissenting.

Because of their eagerness to affirm this case, the four-member majority court first rejected the only two theories the landowners, Vuncannons, argued below and on appeal. First, Vuncannons argued entitlement to compensation for their nine-foot strip of land abutting Nettleton Avenue because the taking of the property by the city constituted inverse condemnation. Second, they claimed Nettleton Avenue was a controlled-access street and that applicable law providing for acquiring property accessing such a street requires payment of compensation to the landowner. The majority court agrees, as I do, that neither of these theories have merit. But, instead of reversing and remanding this case as it should, the majority court offers a third legal theory under which Vuncannons’ award should be sustained. In doing so, it is not only dead wrong in its analysis of the law, it condescendingly presumes neither the attorneys for the respective parties nor the trial judge understood how to present or try this case.

Undisputedly, the city’s major street plan requires a one hundred-foot right-of-way for Nettleton Avenue which abuts Vuncannons’ lots. The city’s action in this respect is authorized by Ark. Code. Ann. §§ 14-56-417(b)(1)(A) and (B) and (b)(2)(B) (1987). Because of the rapid proliferation of subdivisions, legislatures, including Arkansas’s, have required developers to dedicate a portion of their land for certain public purposes, such as streets, parks, and schools, as a prerequisite to approval of their plot or subdivision. E. McQuillan, The Law of Municipal Corporations, § 33.05.10 (1991).

The majority court asserts that neither the Vuncannons nor their predecessors in title have ever dedicated their lots alongside Nettleton Avenue and that, because no such dedication previously took place, the city cannot now require such a right-of-way without compensation. The court cites no law for this declaration, and I suggests its failure to do so is because no such requirement exists. In fact, § 14-56-414(d) (1987) reflects the contrary is true. That provision provides as follows:

(d)(1) Master Street Plan. The commission may prepare and adopt a master street plan which shall designate the general location, characteristics, and functions of streets and highways.
(2) (A) The plan shall include the general locations of streets and highways to be reserved for future public acquisition.
(B) The plan may provide for the removal, relocation, widening, narrowing, vacating, abandonment, and change of use or extension of any public ways.

Here, the City of Jonesboro provided a one-hundred foot right-of-way along Nettleton Avenue, which borders Vuncannons’ lots, in Turtle Creek Ranch Addition, which is a part of the city. The city’s plan provided a right-of-way for the avenue so the avenue could be widened in the future. In seeking replat of their lots into one, the plat the Vuncannons submitted to the Metropolitan Area Planning Commission was erroneous because it failed to comply with the city’s street plan and it did not reflect the one hundred-foot right of way along Nettleton Avenue. In other words, all the city asked the Vuncannons to do was to correct their plat so as to show the entire right-of-way rather than the forty-one feet their erroneous plat reflected. Contrary to the majority court’s view of it, there is no meaningful distinction between the case here and this court’s decision in Newton, Circuit Clerk v. American Security Company, 201 Ark. 943, 148 S.W.2d 311 (1941). In Newton, the court upheld the Pulaski County Planning Board’s decision to withhold approval of the property owner’s plat until the owner dedicated an additional ten-foot strip of land abutting a county road so the minimum right-of-way requirement contained in the county road master plan was met.

As I read the majority opinion, the city need not pay compensation for dedicated streets, rights-of-way and set backs if such public acquisitions are dedicated and in use at the time a subdivision is added to the city. However, compensation must be paid a property owner with a strip of land located within a right-of-way or set back shown on a city’s master street plan if that strip of land was not in actual use when the subdivision was accepted by the city.

In the present case, Nettleton Avenue has a one hundred-foot right-of-way, but only part of it is used for street purposes; the remaining part of the right-of-way was reserved by the city for widening into a five-lane street when traffic increased. Of course, the Planning Commission anticipated such an increase in traffic and the Vuncannons’ building a shopping center abutting Nettleton Avenue reflects and enhances the anticipated increase.

In conclusion, if the parties had known the legal theory upon which the majority members of this court would decide this case, I have no doubt that the city and the Vuncannons would have presented evidence specifically bearing on such a theory. The parties and the trial judge will be amazed when reading the majority opinion and will, I conjecture, barely recognize this case as the one they tried. Worse yet, municipal officials will be left scratching their heads wondering what our court has done to existing statutory law bearing on subdivision master street plans, rights-of-way and set backs.

Because I would reverse and remand this case, I dissent.

Hays and Corbin, JJ., join this dissent.

SEPTEMBER 28, 1992

Bill Penix and J. Robin Nix II, for appellant.

Kelley Webb, for appellees.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Per Curiam.

Appellant’s and appellees’ petition for rehearing are denied.

Tom Glaze, Justice,

dissenting. Both parties petition for rehearing. The Vuncannons believe they are entitled to attorney’s fees because such fees should be authorized to inverse condemnation cases. While the Vuncannons filed and pursued this matter as an inverse condemnation case, it was not — as I pointed out in my earlier dissent — decided on that theory. The majority opinion initially describes this case as an inverse condemnation case, but no further mention of inverse condemnation is found in the opinion. The opinion more accurately should read that the Vuncannons brought this suit against the City of Jonesboro as one for inverse condemnation. Because the majority decided this cause on another theory, the Vuncannons’ argument for attorney’s fees on an inverse condemnation basis is misdirected, and must be denied on this basis alone.

In its petition for rehearing, the City of Jonesboro urges the four-member majority misreads and misapplies the statutory law cited in its opinion. While I agree, I have already addressed this point in my earlier dissent and need say no more on that subject. The city’s petition does prompt me to mention one brief point, however.

The majority opinion specifically concedes that neither party in this cause questions the city’s power to require dedication of rights-of-way in land which is the subject of an initial subdivision plat or development of land. The majority further stated the Vuncannons’ property had been platted, but then mused the majority did not know if the city had a regulation governing the replatting of land or whether that regulation, concerning replatting, by its terms constituted “development of land” under Ark. Code Ann. §§ 14-56-412 and -417 (1987). The city in its rehearing petition announces it does have regulations governing the replatting of land, the regulations define the terms subdivision and development, but the city did not put these regulations into evidence because the regulations were not relevant to the two theories — inverse condemnation and controlled access facility — asserted by the Vuncannons in their cause of action.

The city’s revelation in this respect merely underscores the point I offered in my earlier dissent — “ [I] f the parties had known the legal theory upon which the majority members of the court would decide this case, I have no doubt that the city and the Vuncannons would have presented evidence specifically bearing on such a theory.” This court should have reversed and remanded this case in order to allow both parties the opportunity to address and to offer evidence on the theory the majority court, itself, raised and upon which the court decided this case. Due process requires it.

Hays and Corbin, join this dissenting opinion.

       To have inverse condemnation, the reasonable commercial use of the property allegedly taken must have been substantially diminished or destroyed. Here, the Vuncannons built the same building they would have built before and are using the disputed nine feet for parking and signs for the shopping center.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Howard Edward CHISM v. STATE of Arkansas
    CR 92-569
    834 S.W.2d 155
    Supreme Court of Arkansas
    Opinion delivered July 20, 1992

      Denny Hyslip, for appellant.
    No response.
   .

Per Curiam.

The appellant, Harold Edward Chism, filed a motion in this court for a Rule on the Clerk. It was denied because he gave his notice of appeal before the trial court ruled on his motion for a new trial. Rule 4 of the Rules of Appellate Procedure provides, in part: “A notice of appeal filed before the disposition of any motion. . .shall have no effect.” He now files a motion for a belated appeal, but does not state a valid ground for a belated appeal. Thus we deny the motion.

It is an attorney’s duty to give a timely notice of appeal. If the attorney for Harold Edward Chism will concede by affidavit that it was his fault that the notice was not timely given the motion will be granted. See per curiam issued February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    Charles Louis JACKSON v. STATE of Arkansas
    CR 90-274
    833 S.W.2d 376
    Supreme Court of Arkansas
    Opinion delivered July 20, 1992

      Milas H. Hale, III, for appellant.
    No response.
   Per Curiam.

Appellant was convicted of capital murder in Pulaski County Circuit Court on July 11, 1990. He was sentenced to life imprisonment without parole. Appellant appealed from his conviction, and his counsel filed a brief pursuant to Anders v. California, 386 U.S. 378 (1967), stating that there was no merit to the appeal. On April 29, 1991, we granted appellee’s motion to order compliance with Arkansas Supreme Court Rules 11 (f) and 11(h). Appellant’s attorney failed to file a new brief, and on May 11, 1992, one year later, we granted his motion for belated brief. Appellant has now filed a second brief pursuant to Anders, supra, stating that there is no merit to this appeal. This second brief does not contain an abstract at all and again does not comply with Ark. Sup. Ct. R. 11(f) and 11(h). The state submits that another rebriefing of this case should be ordered because appellant has not complied with the mandates of Arkansas Supreme Court Rules 9, 11(f), and 11(h).

We agree Mr. Milas H. Hale, Ill’s brief fails to meet the requirements of Rules 9, 11(f), and 11(h), and is so inadequate that the appeal cannot be decided. Accordingly, the state’s second motion to order compliance with Rules 9,11 (f), and 11 (h) is granted.

Rather than to chance further delay in this appeal by ordering another rebriefing by Mr. Hale, we hereby relieve him from further duties herein and appoint new counsel, who shall file a new abstract and brief meeting the requirements of Rules 9, 11 (f), and 11(h). Hooper v. State, 309 Ark. 622, 833 S.W.2d 769 (1992) (per curiam.) A new briefing schedule shall be established by the clerk’s office.

A copy of this per curiam and copies of the record and briefs filed in this appeal to date will be forwarded to the Committee on Professional Conduct for that committee’s consideration of Mr. Hale’s conduct.


text:
    Leslie SEGO v. STATE of Arkansas
    CR 92-764
    832 S.W.2d 855
    Supreme Court of Arkansas
    Opinion delivered July 20, 1992

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

The appellant, Leslie Sego, by his attorney, has filed a motion for a rule on the clerk.

His attorney, Joe Kelly Hardin, admits that the failure to file the record in time was 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, 265 Ark. 964.

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


author: Jack Holt, Jr., Chief Justice.

text:
    Ernest Dewayne LEMONS v. STATE of Arkansas
    CR 91-108
    836 S.W.2d 861
    Supreme Court of Arkansas
    Opinion delivered September 14, 1992

      Daniel D. Becker and Terri Harris, for appellant.

      Winston Bryant, Att'y Gen., by: Cathy Derden, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Ernest Dewayne Lemons, had his probation revoked by the trial court because he failed to comply with certain conditions of his probation. The primary issue before us is whether or not the trial court erred in finding the circumstantial evidence adduced during its hearing was sufficient to support revocation. We affirm the trial court.

In August 1989, Lemons pled guilty to two counts of theft of property over $2500 and one count of theft of property over $200 and was placed on probation by the trial court. In August 1990, the state filed a petition to revoke his probation on grounds arising out of the facts surrounding his arrest for the shooting death of Greg Stephens. A probation revocation hearing was held prior to Lemons’ murder trial. Based upon the testimony of Lemons’ probation officer, two police officers who investigated the murder charge, and a witness from the murder scene, the trial court determined that Lemons had violated the terms of his probation and sentenced him to thirty-five years. He appealed the revocation.

While his appeal was pending, Lemons was tried on the murder charge. Because of inconsistent testimony at trial, the state filed a motion to dismiss the charges, which was granted. As a result, Lemons moved to supplement his revocation appeal with a transcript of the testimony from the murder trial. This court, in turn, entered a per curiam order remanding the revocation proceeding to the trial court for “a rehearing, or reexamination and re-evaluation of all relevant evidence.” After considering this additional evidence, the trial court reaffirmed its original position and made specific findings that:

1. The condition with regard to firearms was violated. This finding is based upon the circumstantial evidence the Court finds to be credible.
2. The testimony and opinion of Dr. Michael Graham is decisive and supports the Court’s previous finding that Defendant Lemons committed a homicide.
3. That either Dr. Malak made a mistake in judgment and his opinion, or gave his opinion based upon a tissue slide of another person through an error of laboratory personnel.
4. Dr. Beamer’s opinion is given some weight although Dr. Beamer did not have the advantage of reviewing the necessary exhibits and materials that the other two (2) experts examined.

To revoke probation, the burden is on the state to prove the violation of a condition of probation by a preponderance of the evidence. See Ark. Code Ann. § 5-4-309 (1987); Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986); Pearson v. State, 262 Ark. 513, 558 S.W.2d 149 (1977). On appellate review, the trial court’s findings will be upheld unless they are clearly against a preponderance of the evidence. Hoffman, supra. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Thus, the burden on the state is not as great in a revocation hearing. Since determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge’s superior position. Hoffman, supra.

The evidence presented in support of revocation of Lemons’ probation, although circumstantial, is sufficient. Circumstantial evidence alone is sufficient to sustain a conviction when it indicates the accused’s guilt and excludes every other reasonable hypothesis. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992).

Lemons argues that the evidence presented at the hearing was inconclusive, claiming that it is possible that the victim was killed after he left. However, the evidence is otherwise. A witness testified that she saw Lemons and the deceased scuffle. The appellant then stated, “I have something for you” and was seen reaching under the driver’s seat. He pulled “something” out. Shots were heard next, and then the victim was found bleeding from a gunshot wound to the head. The victim later died. Based on the foregoing, we cannot say that the trial court’s findings were clearly against a preponderance of the evidence.

Lemons further complains that the trial court abused its discretion in continuing the revocation hearing on its own motion and ordering issuance of a subpoena for a witness not under subpoena for either party. However, Lemons has failed to cite authority on this point, and his argument is not persuasive. The rules of evidence are not strictly applicable in revocation proceedings. See Redman v. State, 256 Ark. 774, 580 S.W.2d 945 (1979); A.R.E. Rule 1101.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Jerry Lee ALLEN v. STATE of Arkansas
    CR 92-94
    838 S.W.2d 346
    Supreme Court of Arkansas
    Opinion delivered September 14, 1992

      Donald A. Forrest, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, for appellee.
   Robert H. Dudley, Justice.

James Lee Allen, appellant, was charged with capital murder. Under the capital murder statute, Ark. Code Ann. § 5-10-101 (Supp. 1991), there are two types of capital murder. One is the premeditated and deliberate killing of a person, and the other is the killing of a person in the course of one of several enumerated felonies. Appellant was charged only with premeditated and deliberate capital murder. This kind of premeditated capital murder charge includes the lesser charge of purposeful first degree murder. Appellant was not charged with the other kind of capital murder, often termed felony-murder, but even so, and over his objection, the trial court gave a first degree felony-murder instruction. He was convicted of “first degree murder.” The verdict does not reflect whether the jury found him guilty of first degree premeditated murder or first degree felony-murder. It only reflects a finding of guilty of “first degree murder.” Thus, appellant may have been convicted of first degree felony-murder, a crime with which he was never charged.

In Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), the accused was charged only with the premeditated sort of capital murder. At trial, evidence of a felony during the course of the killing was introduced and over the accused’s objection the trial court gave a felony-murder instruction. In holding this was error, we said:

There are different elements of proof to these charges. According to the information, the state had to prove Ward acted with premeditation and deliberation and killed two or more people. As the jury was instructed, the state did not have to prove intent — it only had to prove that the murders occurred during the course of the felony.

Id. at 101, 733 S.W.2d at 7.

The same reasoning applies to this case, and, just as in the cited case, the jury may have convicted appellant of felony-murder. The conviction of a person for a crime with which he was never charged constitutes a clear violation of that person’s constitutional right to due process. Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990).

Some constitutional rights are so basic to a fair trial that their violation “can never be treated as harmless.” Gomez v. United States, 490 U. S. 858 (1989). Examples are the right to counsel, see Penson v. Ohio, 488 U.S. 75, 88 (1988), and the right for a grand jury proceeding to be free of racial discrimination. Vasquez v. Hillery, 474 U.S. 254 (1986). In Pope v. Illinois, 481 U.S. 497, 502 (1987), the opinion of the court states that the harmless error inquiry is appropriate only when the trial was not fundamentally unfair. Quite probably one’s right to be informed of a charge is that type of fundamental right that cannot be reviewed for harmless error since the right to notice of a charge is “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Schad v. Arizona, _ U.S _, 111 S.Ct. 2491, 2497 (1991) (quoting Speiser v. Randall, 357 U.S. 513, 524 (1958)). Still, some constitutional rights are subject to the harmless error rule of Chapman v. California, 386 U.S. 18 (1967). See, e.g., Rose v. Clark, 478 U.S. 570 (1986). However, we are not required to decide whether this case comes within that class of cases that might be subject to the harmless error review, because, even if it should be, we could not hold beyond a reasonable doubt that the error did not contribute to the verdict. See Yates v. Evatt, 500 U.S. _, 111 S. Ct. 1884 (1991). Thus, under either standard we must reverse.

Appellant argues that we must reverse and dismiss, rather than reverse and remand, because there is insufficient evidence to convict him of first degree murder either by purpose or felony-murder. We decline to dismiss the case, but because of the argument, we necessarily set out the facts.

On the evening of November 16, 1990, appellant, Sam Harris, and John Reed were drinking beer in the parking lot of Catt’s Liquor Store in Turrell. Sam Harris and John Reed were sitting in Sam Harris’ car while the appellant was a short distance away talking to a friend. A pickup truck struck Harris’ car and, without stopping, was driven away. Sam Harris started his car and began to chase the pickup truck. Both vehicles circled the block and, when they came back by the parking lot, appellant jumped in Sam Harris’ car. Two other cars joined in the chase.

Shortly after the chase began, Sam Harris was able to read the numbers on the pickup truck’s license plate and was ready to stop the chase. Appellant said, “Let’s go get that truck,” and the chase continued. A short distance away, the pickup truck was driven off the road and into a field and then in circles around the field. Sam Harris and the drivers of the other two chase cars stopped their vehicles near the field. Sam Harris knew that appellant had a pistol. Appellant left the Harris car and walked toward the pickup. According to appellant’s statement he fired six shots at the rear window of the pickup truck, but he contends he only meant to scare the driver. One of the bullets struck the victim, Robert Harris, in the back of the head and immediately killed him. The appellant hid his pistol, but later told the police where it was and they recovered it.

One’s intent to commit murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991). Here, appellant said, “Let’s go get that truck” as they were chasing it. He got out of the car with a. 3 8 caliber pistol and walked toward the pickup truck. He fired six shots from the comparatively large size pistol. One of the shots struck the victim above and behind his left ear and immediately killed him. These facts were sufficient for the jury to infer purposeful murder. Although appellant said he did not intend to kill the victim, but instead only intended to scare him, the jury was free to reject his testimony as false. See Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Thus, we do not dismiss the charge of premeditated murder, but rather remand it for a new trial.

The felony-murder charge never was filed, and consequently we can neither remand nor dismiss it. However, since we are remanding the premeditated murder charge that was filed, and since the State might seek to amend the information to include a felony-murder count, we will discuss the issue. The proof showed that appellant fired a pistol when he killed the victim. At trial, the State contended that firing the pistol constituted the underlying felony of aggravated assault, and on that basis the trial court gave the felony-murder instruction. This was a misconstruction of the felony-murder statute. Under the first degree felony-murder statute, “a person commits murder in the first degree if. . .he commits... a felony, and in the course of and in the furtherance of the felony . . . causes the death of any person . . . .” Ark. Code Ann. § 5-10-102 (Supp. 1991) (emphasis supplied). The assault in this case was only in the furtherance of the murder, not of some other felony. In Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), we focused on the emphasized language in the corresponding capital murder provision. There, the defendant chased one of his victims into the victim’s house and killed him. The State proceeded on a felony-murder theory, using burglary as the underlying felony to support the conviction. In reversing we wrote, “[F]or the phrase ‘in the course of and in furtherance of the felony’ to have any meaning, the burglary must have an independent objective which the murder facilitates.” Id. at 427, 731 S.W.2d at 759. In sum, under the proof, the appellant would not be guilty of felony-murder even if he were so charged.

Appellant next argues that the trial court erred in refusing to give his proffered instruction on manslaughter that “he caused the death under the influence of extreme emotional disturbance for which there was a reasonable excuse.” The trial court ruled correctly in refusing to give the instruction because there was no rational basis for giving it. See Frazier v. State, 309 Ark. 228, 828 S.W.2d 838 (1992).

Appellant’s brief contains other points of appeal that are not necessary for us to discuss because they were not raised below, or the required proffers were not made on evidentiary rulings, or the alleged errors are not likely to arise again upon retrial.

Reversed and remanded.


author: David Newbern, Justice.

text:
    Lloyd EVANS v. STATE of Arkansas
    CR 92-200
    836 S.W.2d 383
    Supreme Court of Arkansas
    Opinion delivered September 14, 1992

      The Cortinez Law Firm, P.A., by: Robert R. Cortinez, for appellant.

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

Lloyd Evans, the appellant, was convicted of rape. He was sentenced as an habitual offender to life imprisonment. His contention on appeal is that identification of him by the victim should have been suppressed because it resulted from an unduly suggestive photographic lineup. We affirm the conviction.

On September 6, 1990, between 8:30 and 9:00 p.m., the victim was walking from her home in Pine Bluff to her husband’s home to collect their child. A man approached her, spoke with her, and then placed a gun at her back and forced her to the track area behind a school, where he raped her. The victim gave a description to the police after she was taken to the hospital that evening. Four days later she identified Lloyd Evans, from a photographic lineup, as her assailant.

Evans moved to suppress the identification testimony. He argued the lineup was unnecessarily suggestive. A suppression hearing was held just prior to trial. The victim and the officer who conducted the lineup both denied there had been any attempt by the police to suggest Evans as the culprit in the lineup procedure. The Court ruled the identification process was proper and permitted the victim to testify that she was immediately able to identify the photograph of Evans as that of her assailant without prompting or suggestions.

Evans’ motion stated that the lineup was unnecessarily suggestive because: (1) the facial hair was not similar on all participants in the lineup, (2) the body builds of the participants in the lineup was not similar, (3) the color of the participants in the lineup was not similar, (4) the accused was suggested to the victim as the assailant.

After hearing the testimony from the victim and Officer Roby the Court referred individually to the points made in the motion, discussed them while or after viewing the photographs shown to the victim, and decided none of them had merit.

In addition to the challenges raised and argued in his motion Evans adds a fifth element which he argues tainted the identification procedure. He contends his was the only photograph of a man in a white T-shirt. The other five individuals pictures were dressed in orange jumpsuits. From this fact Evans argues that the victim was led to identify him as her assailant because she had to conclude that he was the only one with opportunity because he was not incarcerated and thus the only one who could have committed the offense.

While Evans’ motion did not mention this point, his counsel seemed to allude to it while cross examining the victim and did mention it in closing argument to the jury. We have doubts whether the argument was effectively raised in the Trial Court. Assuming it was raised, however, it is to no avail.

The victim testified the shirt Evans wore in the photograph was unlike the one he wore at the time she was raped. She said she identified Evans because his face was that of her attacker. She did so immediately when presented with the photographs and she did it again without hesitation at the trial.

The argument that Evans was suggested by the lineup because the victim would have to conclude none of the others could have raped her because they were wearing obvious jail garb is unconvincing. Four days elapsed between the event and the lineup, and the others in the lineup could have been jailed during that time.

The Court ruled without consideration of the difference in attire. The ruling comports with the standard appropriate for determination of the issue. In Graham v. State, 296 Ark. 400, 757 S.W.2d 538 (1988), we quoted the criteria for making the determination as enunciated by the Supreme Court:

[T]he prior opportunity to observe the alleged criminal act, the existence of any discrepancy between the prelineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and lapse of time between the alleged act and the lineup identification. [United States v. Wade, 388 U.S. 218, 241 (1967)].

This victim walked with her assailant for some time prior to the rape, and she stated there was sufficient light to see him well enough to recognize him. As stated by the Trial Court, there is sufficient similarity among the individuals portrayed that they all fit the victim’s initial description. There was no prior attempt at identification by the victim and there was not a very long passage of time between the attack and the identification. We cannot conclude the Trial Court erred in finding the lineup was not overly suggestive and the evidence was properly presented to the jury.

The record has been examined in accordance with Ark. Sup. Ct. R. 11 (f), and it has been determined that there were no other rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


text:
    Benny Lee KILLCREASE v. STATE of Arkansas
    CR 92-74
    836 S.W.2d 380
    Supreme Court of Arkansas
    Opinion delivered September 14, 1992

      Keil & Goodson, by: John C. Goodson, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Benny Lee Killcrease, was convicted of raping his eight-year-old daughter by engaging in deviate sexual activity with her on occasions from December 8 to 29,1990. He was sentenced to life imprisonment. He contends the Trial Court erred by (1) allowing the victim’s grandmother to testify about hearsay statements made by the victim about the sexual abuse and (2) allowing a police officer to testify that he, Killcrease, was arrested in Louisiana shortly after he was informed that his case was turned over to the prosecuting attorney’s office. We find no error and affirm.

The victim testified Killcrease required her to engage in oral intercourse. The incidents occurred mainly on Saturdays while the victim’s mother was at work. On December 29th, the victim told her mother and grandmother about it, and she was promptly taken to the Texarkana police station where she was interviewed by Officer Charles Davis. At trial, Killcrease denied the accusation.

On December 29th, Officer Davis advised Killcrease that he was being investigated for sexually abusing his daughter and told him to move out of the home he shared with her. On December 31st, Officer Davis informed Killcrease the case was being turned over to the prosecuting attorney’s office. That same day Kill-crease left Arkansas, and he was arrested seven days later in New Orleans, Louisiana. Killcrease explained that he went to New Orleans to find a job, although no witnesses corroborated his testimony. At the time Killcrease left for Louisiana, no warrant had been issued or charges filed in connection with the case.

1. Excited utterance

During direct examination, the victim’s grandmother was allowed to testify that the victim told her “I didn’t want to do it, he made me do it grandma, I didn’t want to do it.” The grandmother further stated the victim said her daddy had been “doing things to her.” Killcrease argues these statements were inadmissible hearsay not within the excited utterance exception in Ark. R. Evid. 803(2) (1992).

The grandmother explained the victim made these statements to her on December 29th at approximately noon while upset and crying. The victim told her grandmother she was upset because she had been sexually abused by Killcrease earlier that day.

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. 803(2). For the excited utterance exception to apply, there must be an event which excites the declarant. Also, the statement 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).

In the Smith case a three-year-old child who witnessed a murder made statements about the incident to his mother the day after the murder occurred. The Trial Court allowed the mother to testify about what the child told her under the excited utterance exception. We affirmed based on the fact that the child'was crying and frightened when making the statements to his mother.

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.

The testimony here indicated the eight-year-old victim was sexually abused by her father the morning of the 29th. This abuse constitutes a “startling event” within the meaning of Rule 803(2). See Weaver v. State, 271 Ark. 853, 612 S.W.2d 324 (Ark. App. 1981). Around noon on that day, while still upset and under the stress of the startling event, the victim told her grandmother about the abuse. The statements made by the victim to her grandmother fit clearly within the excited utterance exception, and the Trial Court’s decision was correct. See also Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991); Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991); Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987).

Killcrease also argues the Trial Court should not have allowed the grandmother to testify about what the victim said without finding the victim unavailable to testify. Under the clear language of Rule 803, excited utterances are admissible even though the declarant is available as a witness. It is true that under the Sixth Amendment Confrontation Clause the State must usually either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Smith v. State, supra. Killcrease did not raise the Sixth Amendment issue below. Even constitutional issues may not be raised for the first time on appeal. Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1992).

Furthermore, the victim testified at trial and was subject to extensive cross examination. When a declarant testifies at trial and is subject to unbridled cross examination, the Confrontation Clause is not violated by the admission of hearsay statements made by that declarant. Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992).

2. Flight from arrest

Officer Davis testified over objection that Killcrease was arrested in New Orleans soon after he was told that his case was turned over to the prosecuting attorney’s office. The State argued evidence of Killcrease’s flight from Arkansas to avoid arrest was relevant to corroborate his guilt. Killcrease asserts the evidence was irrelevant and prejudicial because no warrant had been issued or charges filed before he left the State. Essentially, Killcrease did not know he was going to be arrested or charged before leaving.

Whether the probative value of evidence is outweighed by the danger of unfair prejudice is a matter addressed to the discretion of the trial judge, and the decision will not be disturbed absent a manifest abuse of discretion. Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989).

Officer Davis did not specifically testify that Killcrease fled Arkansas to avoid being arrested for rape. He testified that New Orleans was where the arrest occurred. Killcrease explained he went to New Orleans only to find a job. Flight to avoid arrest may be considered by the jury as corroboration of evidence tending to establish guilt. Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990); Ferguson v. State, 298 Ark. 600, 769 S.W.2d 418 (1989). It was up to the jury to determine whether Killcrease fled Arkansas to avoid arrest. We cannot say the Trial Court abused its discretion by allowing the officer to testify that Killcrease was arrested in Louisiana.

Affirmed.


author: Tom Glaze, Justice.

text:
    Lloyd EVANS v. STATE of Arkansas
    CR 92-201
    836 S.W.2d 384
    Supreme Court of Arkansas
    Opinion delivered September 14, 1992

      The Cortinez Law Firm, P.A., by: Robert R. Cortinez, for appellant.

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

The state originally charged appellant with rape, and two months prior to trial, amended its information to allege appellant a habitual offender under Ark. Code Ann. § 5-4-501(b) (1987). Appellant was found guilty of rape, and at a subsequent hearing on whether appellant’s sentence should be enhanced, the jury sentenced him to 100 years in the Arkansas Department of Correction. On appeal, appellant argues that (1) he had not been properly charged as a habitual offender and (2) one of the convictions used by the state for enhancement purposes was pending on appeal and thus should not have been considered by the jury in its sentencing deliberations.

Regarding appellant’s first argument, the record clearly reflects the appellee amended its information to allege appellant had been convicted or found guilty of four or more felonies, but his main contention seems to be that he had never been notified of the habitual offender charge. In reviewing the abstract, we conclude appellant raises this point for the first time on appeal; therefore, we will not address it. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). In fact, when the state offered certified copies of appellant’s prior convictions, appellant’s counsel acknowledged he knew of “no objections for the purposes of [their] being introduced.”

We reach the same conclusion concerning appellant’s second issue on appeal because he never presented that argument below. On appeal, the state responds to appellant’s argument by citing Birchett v. State, 291 Ark. 379, 724 S.W.2d 492 (1987), where we held that prior convictions on appeal are properly admitted for the purposes of sentence enhancement. See also Halfacre v. State, 292 Ark. 331, 731 S.W.2d 179 (1987). Again, because appellant never objected to the introduction of his prior conviction which was pending on appeal, it is unnecessary to discuss the aforementioned principle of law, announced in Birchett and Halfacre, or to apply it to the facts presented here.

We affirm.


text:
    James ODUM v. STATE of Arkansas
    CR 92-839
    837 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered September 14, 1992

      John R. Henry, for appellant.
    No response.
   Per Curiam.

James Odum, by his attorney, has filed a motion for a rule on the clerk.

His attorney, William C. McArthur, admits by motion and brief 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 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:
    James Monty SWINDLE v. STATE of Arkansas
    CR 92-820
    837 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered September 14, 1992

      John R. Henry, for appellant.
    No response.
   Per Curiam.

James Monty Swindle, by his attorney, has filed a motion for a rule on the clerk.

His attorney, James R. Henry, admits by motion and brief 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, 265 Ark. 964.

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


text:
    John Oather CASTEEL, et al. v. W. J. “Bill McCUEN”, Secretary of State and Arkansas State Board of Election Commissioners
    92-925
    835 S.W.2d 885
    Supreme Court of Arkansas
    Opinion delivered September 17, 1992

      Art Givens Law Firm, by: Shawn Sibley, for petitioner.

      Winston Bryant, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for respondent.
   Per Curiam.

On August 17, 1992, an original action was filed in this Court for (A) for a mandamus compelling the Secretary of State to certify the sufficiency of the initiative petition forthwith, (B) for a mandate to the State Board of Election Commissioners to certify the Initiative Petition and include the proposed Amendment on the ballot, or (C) if the initiative petition is found insufficient, for a mandamus directing the Secretary of State to allow 30 days additional time in which to correct any deficiency.

This original action filed by the parties raises issues of fact. Arkansas Supreme Court Rule 17(c) provides that evidence on issues of fact will be taken by a Master to be appointed by this Court. Therefore, the Court appoints the Honorable Tom F. Digby as Master and directs that he conduct such proceedings and hearings subject to and in accordance with our Rule 17 and Rule 53, Arkansas Rules of Civil Procedure, as are necessary to determine whether or not the allegations contained in the petition are true and shall file his report with the Court as expeditiously as possible.

Arkansas Supreme Court Rule 17(c) provides in pertinent part:

As a condition to the appointment of a master the court shall require both parties to file a bond, to be approved by the clerk, to secure the payment of all costs adjudged against them incurred in taking and transcribing the proof including the fee of the master. In lieu of the bond above mentioned, the parties, the intervenors, or other interested persons shall have the option of furnishing a bond executed by the real parties in interest.

Upon satisfaction of the requirements of Rule 17(c) the Master is directed to work with the Supreme Court Clerk and respective counsel in perfecting an expedited briefing schedule that will permit this Court to receive the briefs in sufficient time to consider the issues and render its decision prior to the time this measure is to be printed and placed on the ballot for the November 3, 1992, general election.


text:
    D.M. COX, Diane Davis, Luke Moorman, and Charlene Hardcastle v. Sharon D. PRIEST, Mayor of Little Rock, City of Little Rock, et al. v. Dale Charles, Jim Finch, Jean Gordon, Tommy Hudson, Rev. Delton JONES, et al.
    92-944
    835 S.W.2d 884
    Supreme Court of Arkansas
    Opinion delivered September 17, 1992

      John I. Purtle, for appellants.
    No response filed.
   .

Per Curiam.

The trial court struck an initiated proposal from the August 11, 1992, special city election ballot. The proponents of that proposal have appealed, have asked that the appeal be advanced, and have asked this court to order that the proposal be placed on the November 3, 1992, general election ballot. We have granted the motion to advance the appeal and have ordered an expedited briefing schedule because, even if we have the authority to grant the relief asked by the appellants, the statutory notice provisions might be applicable, and preparation of the ballots and programming of the voting machines would have to be completed before absentee voting starts. Since this is not an original action in this court under the Initiative and Referendum Amendment, but instead is a direct appeal, we need not appoint a master and can proceed forthwith on the trial court record. Thus, we order the interested parties to submit simultaneous opening briefs in the office of the Clerk of the Court before 5 p.m., September 23, 1992. Reply briefs may be filed before 5 p.m., September 25, 1992. The Clerk of the Court is directed to immediately notify by telephone all of the attorneys of record for the various parties, and it shall be the duty of the various attorneys for each party to determine which one of them will file the brief for that party and to see that the briefing deadlines are met.

Because the briefs will be submitted simultaneously, we order that the parties address the following issues in their opening briefs in addition to any others they deem appropriate:

1. Whether Amendment 7 to the Constitution of Arkansas governs this issue and, if it does, whether this court on appeal can order relief not asked in the trial court.

2. Whether statutes control this issue and, if so, whether this court can grant the relief asked on appeal.

3. Whether a court upon an initiative has the power under either Amendment 7 or the statutes to mandate an election at a time other than the date specified in the initiative petition and whether a court in this state has the power to mandate an election at some time other than specified by statute and, if such power exists, can it be exercised by an appellate court when it was not asked in the trial court.


text:
    Bob PORTER v. W.J. “Bill” McCUEN
    92-940
    835 S.W.2d 886
    Supreme Court of Arkansas
    Opinion delivered September 17, 1992

      Friday, Eldridge, and Clark, by: Paul B. Benham, for petitioner.

      Winston Bryant, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for respondent.
   Per Curiam.

On August 20, 1992, an original action was filed in this Court for an order to invalidate a proposed initiated act offered under Amendment 7 to the Arkansas Constitution; to enjoin placement of the proposed initiated act on the November 3, 1992 general election ballot and to direct that any votes cast thereon not be counted or certified because the petition contained invalid signatures and other irregularities and because the ballot title is defective.

This original action filed by the parties raises issues of fact. Arkansas Supreme Court Rule 17(c) provides that evidence on issues of fact will be taken by a Master to be appointed by this Court. Therefore, the Court appoints the Honorable Gerald P. Brown as Master and directs that he conduct such proceedings and hearings subject to and in accordance with our Rule 17 and Rule 53, Arkansas Rules of Civil Procedure, as are necessary to determine whether or not the allegations contained in the petition are true and shall file his report with the Court as expeditiously as possible.

Arkansas Supreme Court Rule 17(c), Rules of Supreme Court provides in pertinent part:

As a condition to the appointment of a master the court shall require both parties to file a bond, to be approved by the clerk, to secure the payment of all costs adjudged against them incurred in taking and transcribing the proof including the fee of the master. In lieu of the bond above mentioned, the parties, the intervenors, or other interested persons shall have the option of furnishing a bond executed by the real parties in interest.

In addition, the Master is instructed to work with the Supreme Court Clerk and respective counsel in expediting a briefing schedule so that the Court will receive the parties briefs in sufficient time to consider the issues and render its decision as to whether or not this measure is to remain on the ballot to be printed for the November 3, 1992, general election.


author: Jack Holt, Jr.,

text:
    CITY OF HOT SPRINGS v. C.W. CARTER, et al.
    92-217
    836 S.W.2d 863
    Supreme Court of Arkansas
    Opinion delivered September 21, 1992

      David H. White, for appellant.

      Hurst Law Offices, by: Q. Byrum Hurst, Jr., for appellees.
   Jack Holt, Jr.,

Chief Justice. This case involves the constitutionality of a municipal sign ordinance.

The appellant, the City of Hot Springs (City), passed Ordinance No. 3987, subsequently amended by Ordinance No. 4035, establishing comprehensive guidelines for the regulation of signs within the City’s limits. Ordinance No. 3987, as amended, provides in pertinent part as follows:

III. DEFINITIONS
* * * *
Portable temporary attraction sign: A single or double surface, internally illuminated, painted or poster panel type sign or some variation thereof, which is temporary in nature, usually mounted on wheels, easily movable, not permanently attached to the ground, a building or structure.
* * * *
XV. MISCELLANEOUS RESTRICTIONS AND PROHIBITIONS
* * * *
(d) Portable and temporary signs are only permitted at a specific address or place of business for two non-consecutive periods up to 30 days each, during any calendar year. Such signs shall be placed/installed in accordance with the National Electrical Code as adopted by the Hot Springs Electrical Code.
* * * *

The appellees, C.W. Carter, et al. (Carter), are owners and operators of businesses located within the City limits which utilize portable, temporary attraction signs. On May 25, 1990, Carter filed a first amended and substituted complaint for declaratory judgment and for injunctive relief on the basis that the amended ordinance unreasonably discriminated against their businesses, deprived them of property without due process of law, violated their rights to freedom of speech, and unreasonably impaired their rights to contract.

On January 23, 1991, the City filed a motion for summary judgment, which was denied. After a subsequent hearing, the trial court entered an order invalidating the enforcement of the amended ordinance.

The City appeals and asserts that the trial court improperly held that Ordinance Numbers 2987 and 4035 violated the equal protection clause of the Constitution of the United States. We agree and reverse and remand the judgment of the trial court.

In Arkansas Hosp. Ass’n v. Arkansas State Bd. of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989)(citing Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983)), we noted that:

On an equal protection challenge to a statute, it is not our role to discover the actual basis for the legislation. Instead, we are merely to consider whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives, so that the legislation is not the product of utterly arbitrary and capricious government purpose and void of any hint of deliberate and lawful purpose. Further, the party challenging the legislation has the burden of proving that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts.

In this case, a rational basis does exist for the legislation, namely traffic safety and aesthetics, and the City has gone no further than necessary to effectuate its legitimate governmental interests. See Donrey Communications v. City of Fayetteville, 280 Ark. 408, 660 S.W.2d 900 (1983)(this court recognized the legitimacy of governmental interests in traffic safety and aesthetics).

As Carter has presented no proof to support his contention that the ordinance was unreasonably discriminatory, our inquiry is limited to the face of the ordinance, with every presumption being in its favor. We do not find that the ordinance on its face is violative of Carter’s guarantee of equal protection under the constitution of the United States, see generally Board of Adjustment of Fayetteville v. Osage Oil & Transportation, Inc., 258 Ark. 91, 522 S.W.2d 836 (1975), and we reverse and remand the judgement of the trial court.

Reversed and remanded.


text:
    Robert STANDRIDGE v. STATE of Arkansas
    CR 92-407
    837 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered September 21, 1992

      Parker, Settle & McCarty, by: John W. Settle, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of manufacturing a controlled substance. The court of appeals in a three-to-three decision affirmed the conviction. Standridge v. State, 37 Ark. App. 153, 826 S.W.2d 303 (March 18, 1992). We granted appellant’s petition for a writ of certiorari because of the tie vote and because the case merited review. See Perkins v. Perkins, 267 Ark. 112, 589 S.W.2d 29 (1979). We reverse the decision of the court of appeals and direct it to reverse the judgment of conviction of the circuit court, and, because of the insufficiency of the evidence, dismiss the charge.

During a surveillance flight, the Logan County Sheriff spotted some marijuana plants growing in a small cleared area that was surrounded by dense underbrush in the National Forest near Paris. The Sheriff also saw a Jeep being driven in the general area but, from the air, could not identify any of its occupants. There was no proof to connect the Jeep with appellant. Soon thereafter the Sheriff and some of his deputies drove their police vehicle as close to the marijuana as possible. They then walked and crawled through the twelve to thirteen feet tall underbrush to the clearing, where they found ninety-three marijuana plants and, six to fifteen feet from the edge of the plants, a small igloo type tent. Inside and around the tent they found a sleeping bag, a package of cups, two plastic cups, two metal cups, and a paperback book. An ice chest was found filled with unmelted ice, beer, soft drinks, and luncheon meat. Because it was August, the unmelted ice constituted substantial evidence that someone had just left the tent.

The book, the plastic cups, and the metal cups were submitted to the State Crime Laboratory for an examination by a fingerprint expert. Several latent prints were found on the various items, and the laboratory obtained the known patent prints of four people who were suspected of growing the marijuana. Appellant’s known prints were among the four suspects’ patent prints. The examiner found appellant’s latent thumbprint on one of the plastic cups. The remaining latent prints lifted from the other items found at the scene were never identified. The State’s fingerprint expert stated that he had no way of knowing when or where appellant might have touched the plastic cup. He testified that the print could have been made as much as a year earlier and that the cup could have been “anywhere in the world” when it was touched by appellant. No other evidence linked appellant to the scene or to the manufacture of marijuana.

When the sufficiency of the evidence is challenged, we affirm if there is substantial evidence to support the verdict. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force to compel reasonable minds to reach a conclusion that is beyond suspicion and conjecture. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989).

We have long held that circumstantial evidence alone may be sufficient to support a conviction. Hurvey v. State, 298 Ark. 289, 766 S.W.2d 926 (1989). However, we have also said that such evidence must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Pemberton v. State, 292 Ark. 405, 730 S.W.2d 889 (1987).

Here, the only evidence that the State offered to connect appellant to the marijuana was the easily movable plastic cup with appellant’s thumbprint, which was found beside a tent that was six to fifteen feet from the marijuana plants. There was no evidence to suggest when or where appellant touched the cup, whether he had ever purchased it, or how it came to rest near the marijuana. The evidence was insufficient to compel reasonable minds to conclude that appellant was at the crime scene, and even less sufficient to compel the conclusion that he was engaged in the “manufacture” of marijuana. The evidence could only cause the jurors to suspect that appellant was engaged in the manufacture of marijuana.

In its brief, the State cites us to cases in which we have affirmed convictions on the basis of fingerprints, but those cases are easily distinguished on their facts. For example, in Howard v. State, 286 Ark. 479, 695 S.W.2d 375 (1985), witnesses saw an unidentifiable masked robber place his hand on a glass rim that was permanently affixed to the top of a five feet tall partition wall in an office. The appellant’s latent prints were lifted from the exact place where the masked robber was seen touching the glass. In addition, the appellant fit the description of the masked robber.

The holding of the court of appeals is reversed for orders consistent with this opinion.


author: Steele Hays, Justice.

text:
    Ellen Mae RANDLEMAN v. STATE of Arkansas
    CR 92-264
    837 S.W.2d 449
    Supreme Court of Arkansas
    Opinion delivered September 21, 1992

      Davis & Assoc., by: Charles E. Davis, for appellant.

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

This is an appeal from a jury verdict convicting Ellen Mae Randleman of two counts of delivery of a controlled substance and four counts of possession of a controlled substance with intent to deliver, resulting in sentences totalling twenty-three (23) years in the Arkansas Department of Correction.

On appeal, Ms. Randleman challenges the trial court’s order that she be evaluated at the State Hospital pursuant to Ark. Code Ann. § 5-2-305(d)( 1-5) (Supp. 1991) and its ruling that inculpatory statements made by her to the State Hospital psychiatric examiners were admissible for purposes of impeachment under an exception to the psychotherapist-patient privilege contained in Ark. R. Evid. 503(d)(2). Ms. Randleman contends that the court order for psychiatric evaluation and the admission of the statements in the psychiatric forensic report violated her Fifth Amendment right against self-incrimination and her Fourteenth Amendment due process right.

Ellen Mae Randleman was employed as an undercover police officer. She worked with Rick Adamson, an undercover paid informant for the drug task force. Randleman and Adamson had worked together on some ten cases in Stone and Izard Counties when her father was diagnosed as being terminally ill with cancer. Shortly after her father’s death in April 1989, Randleman contacted Adamson to ask the worth of her father’s remaining narcotic prescription drugs. Later, she gathered all of her father’s medicine, took it to Adamson and asked him to sell it for her.

On or about July 19, 1989, Adamson contacted Steve Brondhaver, Chief Deputy for Stone County, and informed him of the appellant’s actions. On July 20, 1989, Adamson and Brondhaver met with Lonnie Cox, a special agent with the FBI. Later that evening, Adamson met Brondhaver at the Stone County Police Department and delivered the drugs to him. He was interviewed by Brondhaver, Dale Weaver, administrator of the drug task force, and Jack Yancey, sheriff of Izard County, at Yancey’s house. Adamson then recorded a telephone conversation with appellant in which he told her he had sold some of the drugs and had the money for her. They made arrangements for her to go to Adamson’s house later that evening and be paid five hundred dollars ($500.00). Randleman arrived at Adamson’s house at approximately 9:15 p.m. and collected her money. The conversations of Randleman and Adamson were also recorded.

After leaving the residence, Ms. Randleman was arrested. During an inventory search of her car, Weaver and Brondhaver recovered the money given to Randleman for the drugs. In a recorded statement immediately after her arrest, appellant stated that her father’s death had been an extreme financial drain on her family and that she had obtained the controlled substances in an effort to sell them and acquire some badly needed money.

Ms. Randleman filed three consecutive motions for a continuance upon an allegation that she was “undergoing intensive psychological testing and evaluation,” all of which were granted. Additionally, she indicated an intention to call a clinical psychiatrist as a defense witness, and she alleged that the state did not perform the necessary psychological testing and evaluation before she was employed as an undercover operator. At that point the state filed a motion for a psychiatric evaluation of Ms. Randleman at the Arkansas State Hospital. The trial court granted the motion over an objection that the defense of mental disease or defect had not been raised. In due course, the Arkansas State Hospital reported that Ms. Randleman was fit to proceed and had the capacity to conform her conduct to the requirements of the law.

I

THE TRIAL COURT ERRED IN ORDERING THE APPELLANT TO BE EVALUATED BY THE ARKANSAS STATE HOSPITAL

The actions of the trial court in ordering the psychiatric examination of the appellant are covered by statute. Specifically, Ark. Code Ann. § 5-2-305 (Supp. 1991) provides:

(a) Whenever a defendant charged in circuit court: (1) Files notice that he intends to rely upon the defense of mental disease or defect, or there is reason to believe that mental disease or defect of the defendant will or has become an issue in the cause; or
(2) Files notice that he will put in issue his fitness to proceed, or there is reason to doubt his fitness to proceed, the court, subject to the provisions of §§ 5-2-304 and 5-2-311, shall immediately suspend all further proceedings in the prosecution. . . [Emphasis added.]

There are, as well, relevant provisions in Ark. Code Ann. § 16-86-102(a) (1987):

(a) Whenever a prosecution for any crime has been instituted in the circuit court by indictment or information and the defense of insanity at the time of the trial or at the time of the commission of the offense has been raised on behalf of the defendant and becomes an issue in the cause, or the circuit judge has reason to believe that the defense of insanity will be raised on behalf of the defendant and will become an issue in the cause or shall be of the opinion that there are reasonable grounds to believe that the defendant was insane at the time of the alleged commission of the offense, the judge shall postpone all other proceedings in the cause and shall either enter an order directing that the defendant undergo examination and observation by one (1) or more qualified psychiatrists at a local regional mental clinic or center or shall commit the defendant to the Arkansas State Hospital for examination and observation. [Emphasis added.]

In addition to the statutory authority to require a psychiatric examination whenever necessary, the trial court has the inherent authority to raise the defense of mental disease or defect if it has reason to doubt a defendant’s fitness to proceed. See, Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1990); Griffin v. State, 25 Ark. App. 186, 755 S.W.2d 574 (1988).

The appellant’s argument is based on the fact that she did not raise a competency defense and her mental fitness was not at issue. She argues that her intention to introduce psychological evidence as to her ability to meet the state’s standards to be a certified undercover officer is not the same as asserting an incompetency defense or an insanity plea. Appellant cites Schantz v. Eyman, 418 F.2d 11 (9th Cir. 1969) and Davis v. Campbell, 465 F. Supp. 1309 (1979), but these cases are off the mark. They do state that an accused may not be compelled to submit to a pre-trial psychiatric examination by the state courts, but the decisions are based on misconduct by the prosecution and involve the right to have counsel present during a pre-trial mental examination. In contrast, here there was good reason to doubt the appellant’s fitness to proceed and to believe that mental disease or defect could become an issue based on appellant’s three motions for continuances alleging that she was “undergoing intensive psychological testing and evaluation.”

Also, appellant requested the file of Dr. David C. Loe, a psychologist who examined her when she worked for the Judicial Task Force. The state anticipated that the defense might use an initial report in which Dr. Loe recommended the appellant for police work but stated that she might be somewhat naive. In addition, appellant listed Alan G. Tufts, a clinical psychologist in Rogers, Arkansas, as a witness to be called at trial.

Finally, in her response to the state’s motion for discovery, the appellant stated that she would “defend on the grounds of general denial and that the State did not perform the necessary psychological testing and evaluation of the defendant before employment as an undercover operator.”

Although the results of the psychiatric evaluation revealed that the appellant had the capacity to appreciate the criminality of her conduct at the time of the offense charged and was capable of cooperating with her attorney in the preparation of her defense, the trial court did not err in ordering the examination. It was not unreasonable for the trial court to anticipate that the mental condition of the appellant might become an issue in the case.

II

THE TRIAL COURT ERRED IN ALLOWING THE STATE TO USE THE RESULTS OF THE COURT ORDERED FORENSIC EXAMINATION FOR THE PURPOSES OF IMPEACHMENT

During its case in chief, the state attempted to offer the statements the appellant made to Dr. Wendell O. Hall during her evaluation at the State Hospital. The appellant objected to Dr. Hall’s testimony concerning appellant’s inculpatory statements. When the state attempted to introduce the forensic report, the appellant objected and the court sustained the objection. Appellant testified in her own behalf and during cross examination, the state attempted to impeach her by using the statements in the forensic report. Defense counsel again objected but the trial court overruled the objection and allowed the introduction of the forensic report. The state then used the forensic report to point out inconsistencies between the statements in the report and the appellant’s testimony at trial. Ark. Code Ann. § 5-2-307 (1987) states as follows:

Any statement made by a person during examination or treatment shall be admissible as evidence only to the extent permitted by the Uniform Rules of Evidence, but only if such statement is constitutionally admissible.
Ark. R. Evid. 503(b) provides:
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
(d) Exceptions:
(2) Examination by order of court. If the court orders an examination of the physical, mental, or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.

Thus, a patient has a privilege to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his mental or emotional condition. See Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852, 101 S.Ct. 144, 66 L.Ed. 2d 64 (1980), 459 U.S. 1020, 103 S.Ct. 386, 74 L.Ed. 2d 517 (1982). But Rule 503(b) does not grant a privilege to “any information,” only “communications” between the patient and doctor, and confidential ones at that. Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982).

Appellant relies on Estelle v. Smith, 451 U.S. 454 (1981). In Estelle, the United States Supreme Court held that the admission of a psychiatrist’s testimony at the penalty phase violated respondent’s Fifth Amendment privilege against compelled self-incrimination because he was not advised before the pretrial psychiatric examination that he had a right to remain silent and that any statement he made could be used against him at a capital sentencing proceeding.

Estelle is distinguishable because the prosecutor there used the information to prove future dangerousness at the sentencing hearing. In the present case, the forensic report was used for the limited purpose of impeaching the appellant. Also, the court’s decision in Estelle was based on the fact that the respondent was not given Miranda warnings prior to the psychiatric examination. Although the record in the case at bar is silent with respect to Miranda rights prior to the evaluation, appellant did not raise the issue at the trial court level.

The record reveals that appellant’s testimony clearly contradicted her statements at the state hospital. She testified that her supervisor, Dale Weaver, knew of her plan to get Rick Adamson to buy the drugs from her as a way to build credibility within the drug culture. She also stated that she had lied in her original statement to the police. Due to these prior inconsistent statements, the evaluation report was necessary to connect the statements appellant gave to the state hospital personnel with those she made on the tapes and in her statement to the police.

We believe the statement at the hospital came within the exception provided in Ark. R. Evid. 503(d)(2) for examinations by order of the court. It seems logical that communications made to a psychiatrist should not be privileged when the court initiated the examination. Weinstein comments on this subject as follows:

The second exception — for court ordered examinations — is necessary for the effective utilization of this important and developing procedure. “(T)he purpose of the examination would be totally frustrated if the examined party’s revelations to the psychotherapist were privileged.” It is arguable that such an exception need not even have been included in the rule, either because a patient examined on court order is not consulting a psychotherapist “for purposes of diagnosis or treatment” or because these circumstances negate confidentiality. The exception is effective only with respect to the particular purpose for which the examination is ordered.”

Jack B. Weinstein, Margaret Berger, Weinstein’s Evidence, § 504(07), at 504-33 (1980)., [Citations omitted.]

We think some analogy can be found between this case and those instances where custodial statements by an accused are rendered inadmissible (as, for example, lack of a timely arraignment), but may nevertheless be used to impeach the defendant whose trial testimony contradicts such statements, provided the statements were not the product of coercive police tactics. Muncey v. Arizona, 437 U.S. 385 (1978). No such stigma is suggested in this case.

We conclude appellant’s Fifth Amendment right against self-incrimination and her Fourteenth Amendment due process rights were not violated by the use of the psychiatric forensic report to impeach her testimony.

Affirmed.