text:
    Charles W. PHILYAW v. STATE of Arkansas
    CR 85-167
    704 S.W.2d 608
    Supreme Court of Arkansas
    Opinion delivered February 24, 1986

      Greg Stephens, for appellant.

      Steve Clark, Átt’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Charles W. Philyaw, was convicted of attempted capital murder and sentenced to a term of 20 years imprisonment, to run consecutively with a prior life sentence. He sought postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied by the trial court after a hearing. It is from that denial that this appeal is brought. Our jurisdiction is based on Sup. Ct. R. 29(1 )(e).

Although the appellant raised numerous issues in his Rule 37 petition and in this appeal, we need only discuss the first point he raises, since we find it has merit. The appellant contends that the trial court erred when it refused to appoint an attorney to represent him during the trial. We find that the appellant was denied his constitutional right to assistance of counsel, and accordingly reverse the conviction.

The facts giving rise to this situation are as follows. The appellant was charged with aggravated robbery in Miller County, Arkansas, in connection with a May 11, 1981, robbery. He was also charged by amended information in Hempstead County, Arkansas, with attempted capital murder for allegedly pointing a gun at the arresting officer when he was apprehended for the robbery. The appellant was convicted in Miller County of the aggravated robbery charge and sentenced to life imprisonment. He was convicted in Hempstead County on the charge of attempted capital murder and sentenced to a consecutive 20 year sentence. An accomplice in the robbery, Fabian Costillo, was also convicted in Miller County. Circuit Judge John Goodson presided over both of appellant’s trials and over Costillo’s trial.

On November 9, 1981, the appellant filed a pro se notice of appeal and on April 14, 1982 he filed a pro se motion seeking a free transcript. The motion was denied and the appeal was never perfected. Later, a pro se motion for a belated appeal was denied by this court. The appellant then filed a petition in circuit court for relief under Rule 37. A different judge presided over the Rule 37 evidentiary hearing, since Judge Goodson was subpoenaed as a witness.

The appellant was represented in the Miller County robbery trial by retained counsel, Gene Harrelson. On October 5, 1981, the day set for trial in Hempstead County on the attempted capital murder charge, Mr. Harrelson was permitted to withdraw as appellant’s attorney. The order permitting withdrawal of counsel states that the motion to withdraw was filed by Mr. Harrelson, with the “consent and approval” of the appellant, and that “from statements of counsel, statements of consent from Charles W. Philyaw, and other things and proof before the Court,” the court found there was sufficient cause to allow the withdrawal and it was in the best interest of justice.

The appellant maintains that Mr. Harrelson withdrew because the appellant would not accept an arranged plea bargain and because he had not paid Mr. Harrelson. Mr. Harrelson disagreed that he quit because he had not been paid, but agreed that his withdrawal was based on the disagreement over the plea bargain. At the Rule 37 hearing, Mr. Harrelson testified that the idea of withdrawing originated with him and that he does not remember whether he told the appellant that he could have kept him as his attorney if he insisted. He also stated that the subject never came up about the consequences of his withdrawal and whether the appellant could get an appointed lawyer.

The following colloquy occurred during the October 5, hearing:

Court: Mr. Philyaw, how long do you think it will take you to obtain another counsel?
Defendant: A week, your Honor. I should think I could if I can get some phone calls.
Court: All right, sir. Mr. Harrelson, you will be permitted to withdraw. Mr. Philyaw, you will be given a week to obtain other counsel. I anticipate trying this case next week, here.
Defendant: Yes, sir.
Court: Now, whoever you employ, I recommend that you do it as hurriedly as you can because they will need some time to work on your case but any handicap that they may have will be your responsibility. Do you understand that?

On October 12,1981, the case was called and the appellant appeared without counsel. In proceedings before the trial, out of the hearing of the jury, the appellant explained that he was only allowed to use the telephone at night and he could not reach an attorney. Appellant also stated that his sister had talked to 16 lawyers for him who were supposed to call or come and see him, but none of them did. He further stated that he had sent his sister to the judge asking for an appointed attorney and the request was refused. The appellant then related the circumstances under which Mr. Harrelson quit — the lack of payment and appellant’s refusal to plead guilty — and explained that he was told by Mr. Harrelson, “Well, either you plead guilty, or I withdraw as your attorney.” The following then took place:

Court: Now, Mr. Philyaw, whether you — I assume that you knew or know that if an attorney is once in a case, they cannot be relieved unless done so by the judge, and if his — was on the strength of what you said to me, I certainly was not privy and have no business of knowing what you and your attorney’s conversations were. Mr. Harrelson’s not here to give his version of the matter now.
Defendant: —he quit. I did not relieve him because I wanted a different one or to make hardship on the court or anything.
Defendant: He was relieved and I agreed to it.
Court: —I don’t know, and you may make your record, but I plan on trying this case Wednesday. I will appoint a lawyer to sit with you to answer any questions which you may ask, but not to represent you. You may represent yourself, sir.
Defendant: Sir, I don’t know anything about courtroom procedures or anything.
Court: Well, this case was set for last week to try, and we had a jury here and we were ready to do it.
And at that time, you told me you could have a lawyer in a week. Today is the end of that week. I, at that time, told you that this case would be tried on the 13th. I plan to be as good as my word. You can represent yourself . . . Now, your cohort tried this over ... in Miller County, and it didn’t work there; it’s not going to work here.
Defendant: I believe your Honor is wrong there: He fired his attorney; I did not.
When an attorney tells me “You owe me money. Do you have any money?” and I say, “No, I do not have the money,” and then he says, “Then I’m not going to represent you.”
Court: When his name is on this book, he is going to be here. He is going to function. And both of you all agreed because I asked you last week.
Defendant: And you refuse to appoint me a court-appointed attorney?
Court: Yes, sir. I’m not going to throw an attorney or a member of the Bar in here on two days notice to prepare a case such as this when you have had an attorney, you agreed that that attorney be relieved or discharged — whatever word you care for — and let the matter go ahead.

A jury was empaneled and the trial began two days later on October 14, 1981. During a pretrial conference, the judge restated his reasons for refusing to appoint an attorney for appellant. He noted that the appellant had retained counsel and allowed him to withdraw from the case; the appellant then appeared without an attorney on the day set for trial and without having filed an indigent affidavit; and the court appointed counsel to answer his legal questions during the trial. The appellant asked what an indigent affidavit was and, upon being told, asked if he could fill one out. The judge stated that he would let him fill one out, but that he would still have to proceed to trial that day. He then denied appellant’s motion for a continuance to prepare the case with legal assistance. Once more, during the trial, the appellant asked for a court-appointed lawyer and the judge refused.

At the Rule 37 hearing, the trial judge testified that he did not appoint an attorney because: “I had the distinct feeling that this was an effort or subterfuge on Mr. Philyaw’s part to extend the period or to obtain continuance, and that is not the first time that has been tried to be pulled.” The judge also stated that he does not know whether he ever inquired into Mr. Philyaw’s financial status to find out if he could afford to hire a lawyer or whether he provided him with an affidavit of indigency. The judge stated that if he had appointed counsel and postponed the case, “Mr. Philyaw would have probably, in all likelihood, stated that he had ineffective assistance of counsel.”

The attorney who was appointed to assist the appellant, testified he was appointed to “[sit] at counsel table during trial of the case and [answer] any law questions that the defendant might have.”

We have long recognized that the sixth amendment to the United States Constitution guarantees an accused the right to have the assistance of counsel for his defense. This amendment is made obligatory upon the states by the due process clause of the fourteenth amendment. Gideon v. Wainwright, 372 U.S. 335 (1963); Slaughter & Scott v. State, 240 Ark. 471, 400 S.W.2d 267 (1966). Article 2, § 10 of the Arkansas Constitution specifically provides that an accused in a criminal prosecution shall enjoy the right to be heard by himself and his counsel. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). No sentence involving loss of liberty can be imposed where there has been a denial of counsel. White v. State, 277 Ark. 429, 642 S.W.2d 304 (1982). Furthermore, an accused is entitled to relief from a conviction whenever the proceedings indicate the unfairness of trial without the help of a lawyer. McIntyre v. State, 242 Ark. 229, 412 S.W.2d 826 (1967).

The right to counsel, though, is a personal right and the accused may knowingly and intelligently waive counsel either at a pretrial stage or at the trial, Johnson v. Zerbst, 304 U.S. 458 (1938); Barnes v. State, supra, however, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Franklin & Reid v. State, 251 Ark. 223, 471 S.W.2d 760 (1971).

There are certain requirements that must be met, before a trial court can find that an accused has knowingly and intelligently waived counsel and allow the accused to proceed pro se. In Barnes v. State, supra, we adopted a test enunciated by the New York Court of Appeals in People v. McIntyre, 36 N.Y.2d 10, 324 N.E.2d 322 (1974) which provides:

A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues.

The determination in each case of whether a waiver is intelligently made depends upon the particular facts and circumstances. The accused must have full knowledge or adequate warning concerning his rights and a clear intent to relinquish them, before a waiver can be found, Barnes v. State, supra.

Here, it is clear that the trial judge did not comply with the guidelines established in Barnes. To the contrary, there was no request by appellant that he be allowed to represent himself. He was not informed of his right to counsel. The record reveals absolutely no waiver of that right, yet he was forced to represent himself.

Appellant complains that he was not provided with appointed counsel, yet the record reveals no affidavit of indigency was completed by him. While it is true that our Uniform Rules for Circuit and Chancery Courts provide that an affidavit of indigency must accompany any claim by an indigent for relief, the rule also provides, “The affidavit form will be provided by the Circuit Court for such purposes.” Rule 18. The circuit judge did not provide him with such a form, nor did he inform him that it was required. In fact he stated that he does not remember whether he inquired about appellant’s financial status.

The trial judge noted in his testimony at the Rule 37 hearing that he appointed counsel to assist appellant. That attorney testified, however, that he was merely appointed to answer legal questions. In Calamese v. State, 276 Ark. 422, 635 S.W.2d 261 (1982) the appellant appeared without counsel the morning of trial and asked to appear pro se. The trial judge appointed two attorneys to assist appellant, but the attorneys assumed a fully active role as trial attorneys and conducted the defense. On appeal, the appellant argued the trial court erred in allowing her to represent herself since the record fails to reflect a voluntary and intelligent waiver. We stated:

It is true there is nothing in the record showing the trial court made any inquiry into appellant’s attempted waiver of counsel, and if she had been permitted to act as her own counsel, we would be hard-pressed to deny the argument, as the State has the burden of showing a voluntary and intelligent waiver of counsel, (emphasis added.)

As in Calamese, there is nothing in this record to indicate the trial court made any inquiry into appellant’s waiver of counsel, but this appellant did act as his own counsel. The state has failed to meet its burden of showing a voluntary and intelligent waiver.

The trial judge placed a great deal of emphasis on the fact that appellant had retained counsel and allowed him to withdraw, maintaining that this was a waiver of right to counsel.

In Franklin & Reid v. State, supra, we discussed the essential requirements of a waiver and noted that it is “the voluntary abandonment or surrender ... of a right known by him to exist . . .’’In finding that the waiver in that case was not knowingly and intelligently made, we explained:

There is no indication that they [the appellants] were made aware of any alternative to continuing the trial with that representation. . .
In order to say that there was a waiver, it must appear that appellants had full knowledge of their rights and intended to relinquish them . . . One cannot be said to have waived that of which he had no knowledge.

Here too, the appellant argued he did not know he could retain Mr. Harrelson’s services even though the attorney wanted to withdraw. Mr. Harrelson testified he does not remember whether he told the appellant he could keep him as his attorney, and the record does not reveal that the trial judge ever so informed the appellant. Absent that knowledge, the appellant’s act in releasing Mr. Harrelson cannot be viewed as a waiver of a right to counsel.

The Eighth Circuit has reached the same conclusion when confronted with this situation. In United States v. White, 529 F.2d 1390 (1976), the appellant appeared for his arraignment with retained counsel but on the date set for the trial, the court announced that it had received a letter from retained counsel four days before, stating that appellant would represent himself. Appellant indicated that he would prefer to have counsel and that he had attempted to obtain other counsel but had been unsuccessful. The court stated that appellant would be deemed to have moved for a continuance and the motion would be denied. The government then presented its case. After the government’s presentation, the case was continued for one week. When court reconvened, appellant still did not have counsel and the court made a finding of guilt. The Eighth Circuit found:

On this record we cannot find that White knowingly and intelligently waived his right to counsel . . . Mr. White asserted at the July 15th proceeding that he wanted counsel and he related his unsuccessful attempts to obtain another attorney.
Of course, the right to counsel is a shield, not á sword. A defendant has no right to manipulate his right for the purpose of delaying and disrupting the trial. . . However, this record is insufficient to support a finding of intentional manipulation. For all we can tell, appellant may have discharged [retained counsel] for wholly adequate reasons and may have then proceeded in good faith to attempt to find substitute counsel.

Although here the trial judge testified that he thought this was “an effort or subterfuge” by the appellant to extend time, the record is insufficient to support such a finding of manipulation. We note in particular that appellant’s employed counsel initiated his own removal from this case.

Again in Tollett v. United States, 444 F.2d 622 (1971) the Eighth Circuit dealt with an appellant who began a trial represented by retained counsel. The trial recessed to allow the appellant to be psychiatrically evaluated. When the trial resumed, the court explained it had received a letter from appellant’s attorney stating that he and appellant had talked it over and appellant had terminated his employment. The trial court said, “Under those circumstances, we have turned him loose ... Do you want to go back and testify without counsel?” The appellant replied “Yes” and no other discussion concerning counsel took place until just prior to sentencing. The Eighth Circuit reversed, noting that at the resumption of the hearing, the trial court:

did not inquire of Tollett as to the circumstances of the termination of counsel and did not ask Tollett whether his prior attorney had resigned or whether Tollett had discharged him . . . There was no explanation to Tollett at that time that he was entitled as a matter of law to an attorney; no questioning of Tollett to see if he could afford an attorney; and no explanation of the desirability of having an attorney or that if he could not afford to pay an attorney, that the court would appoint one. Under those circumstances, it cannot be said that Tollett intelligently waived his constitutional right to be represented by counsel.

See also, United States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973).

We adopt the reasoning of the Eighth Circuit in Tollett. When an accused appears with retained counsel, the trial judge should not allow the attorney of record to withdraw until:

(1) new counsel has been retained; or
(2) a showing of indigency has been made and counsel has been appointed; or
(3) a voluntary and intelligent waiver of the right to counsel is established on the record.

To establish the latter, the trial judge must explain to the accused that he is entitled as a matter of law to an attorney and question him to see if he can afford to hire counsel. The judge must also explain the desirability of having the assistance of an attorney during the trial and the problems attendant to one representing himself. This last requirement is especially important since a party appearing pro se is responsible for any mistakes he makes in the conduct of his trial and receives no special consideration on appeal.

Accordingly, since appellant was neither represented by counsel nor knowingly waived his right to representation, the conviction must be reversed.

Reversed.

Purtle, J., not participating.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Chester and Hilda R. WARREN v. Toney ROBINSON, Shirley ROBINSON, Warren G. SOUTHARD and Yvonne WORKMAN
    85-65
    704 S.W.2d 614
    Supreme Court of Arkansas
    Opinion delivered February 24, 1986

      Susanne K. Roberts, for appellant.

      Bill Strait, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a second appeal arising from a lawsuit over an easement for use of a roadway and contempt proceedings for violation of the trial court’s previous orders. Our jurisdiction is based upon Sup. Ct. R. 29(1)(j).

In the previous appeal of this case, Warren v. Cudd, 261 Ark. 690, 550 S.W.2d 773 (1977), we affirmed the findings of the trial court establishing an easement, but we further held that the use of the roadway was restricted by the conditions mutually agreed upon by the parties’ predecessors in title. The conditions were that the gate would be locked, that the public would be kept out, and that only the rebuilt roadway would be used. The Chancery Court decision was entered of record in September of 1976, and was affirmed as modified by this court in May of 1977.

In February, 1983, the appellees filed a petition in Chancery Court alleging the appellants had maliciously removed the existing gate and placed a fence across the roadway, thereby totally restricting appellees’ use. This matter apparently was heard by the court on September 6,1983, at which time the trial court found appellants in contempt of court. The court’s order, however, was not filed of record until August 16, 1985.

On January 15,1985, after another hearing, the Chancellor found that:

the defendants [appellants] are in contempt of this Court’s prior orders and hereby orders that:
1. The defendants at no time will place any gate across the road in issue different from the type of metal gate used in September of 1976.
2. The defendants shall not place an obstruction of any kind whatsoever across the road in issue in a position different than that used in September, 1976.
3. The defendant, Chester Warren, is committed to th$ Yell County Jail until such time as he posts a $2,500.00 cash compliance bond with the Yell Chancery Clerk.
4. The defendants shall pay a $1,000.00 fine, and said fine is hereby suspended.
5. The defendants shall pay the plaintiffs attorney a fee of $250.00.

The appellants admit that they erected a wire-gap gate on the perimeter of their property, some 200 yards north of the metal gate which was established in 1976. They contend that the purpose of this new gate was to close their property to confine their cattle. Appellants maintain that they were confused regarding the restrictions placed on the roadway by the court in 1983, particularly in light of the fact that the order was not entered of record until after the appeal of the January, 1985 order.

Appellees testified that the wire-gap gate had been stapled to the post to prevent use, and that such a wire gate was an obstruction placed on the lands by the appellants, contrary to the court’s order of September, 1976.

Appellants argue (1) The Chancellor’s finding that appellants were in contempt of court was against the preponderance of the evidence; (2) The Chancellor erred in not finding appellees in contempt; (3) The Chancellor erred by not permitting appellants to construct a new gate at a different location on the roadway; and (4) The Chancellor abused his discretion by ruling on issues not properly before the court.

1. PREPONDERANCE OF EVIDENCE

Appellants contend that they cannot determine whether the court’s citation was for civil or criminal contempt. The Chancellor’s findings and the punishment meted out indicate that he considered the proceeding as one for both civil and criminal contempt. See Dennison v. Mobley, Chancellor, 257 Ark. 216, 515 S.W.2d 215 (1974).

In cases of civil contempt, the objective is the enforcement of the rights of the private parties to litigation. On the other hand, the primary reason for punishment for criminal contempt is the necessity for maintaining the dignity, integrity and authority of, and respect toward, courts, and the deterrent effect on others as just as important as the punishment of the offender. Dennison v. Mobley, Chancellor, supra.

The distinctions and reasons therefore have been discussed by us in Songer v. State, 236 Ark. 20, 364 S.W.2d 155 (1963), citing Blackard, et al. v. State, 217 Ark. 661, 232 S.W.2d 977, (1950). In Songer we stated:

It is not questioned that punishment for civil contempt will be upheld by this Court unless the order of the trial court is arbitrary or against the weight of the evidence. However, it is not necessary for us to hold the petitioner was found guilty of only civil contempt in order to sustain the trial court. We think the trial court should be sustained even if the petitioner were guilty of criminal contempt.

Even though civil contempt findings are reviewed to determine where the preponderance of the evidence lies, we only examine the record for substantial evidence in criminal contempt cases and affirm a judgment finding criminal contempt unless we find no substantial evidentiary support. Dennison v. Mobley, Chancellor, supra.

Weighing the testimony in light of these rules, we find the preponderance of the evidence supports the finding of civil contempt and there is substantial evidence to support the order of criminal contempt.

In the trial court’s decree of 1976, the Chancellor found that the appellees had a right-of-way across appellants’ property and enjoined the appellants from molesting, interfering, or restricting in any way the appellees’ right of use of the existing roadway. This decree was affirmed by this court, and modified to the extent that it was subject to certain conditions made by mutual agreement, 1.e. the gate should be locked, the public would be kept out, and only the rebuilt road would be used.

Although the appellants claim confusion as to the court’s findings and orders due to the lack of a written order after the 1983 contempt hearing, appellant, Hilda Warren, admitted that the Chancellor ordered them at the 1983 hearing to put the metal gate back where it was in September of 1976.

The general rule is that before a person may be held in contempt for violating a court order, that order must be in definite terms as to the duties thereby imposed upon him and the command must be expressed rather than implied. Wood v. Goodson, Judge, 253 Ark. 196, 485 S.W.2d 213 (1972). The Chancellor’s 1983 order was not filed until five months after the notice of appeal of the 1985 order. Nevertheless, the court’s order of 1976 is clear enough to warrant the finding that the appellants’ conduct amounted to civil contempt of the 1976 order. Likewise, by finding contempt on the part of appellants and ordering appellant, Chester Warren, committed to jail until he posts a compliance bond, it is obvious the court intended punishment for criminal contempt in order to maintain the dignity, integrity and authority of the trial court.

As to the suspended $1,000 fine, we have held that a suspension of a punishment for contempt is in effect a complete remission. Stewart, et al. v. State, 221 Ark. 496, 254 S.W.2d 55 (1953).

2. COURT’S DISCRETION IN CONTEMPT MATTERS

The appellants argue that it is the appellees who should have been cited for contempt. Refusal of a trial court to punish an alleged contemnor will be reviewed by an appellate court only to determine whether there has been an abuse of discretion. Barnes v. Pearson Termite & Pest Control, Inc., 266 Ark. 635, 587 S.W.2d 823 (1979). We find this argument without merit.

3. COURT’S DISCRETION TO MODIFY PREVIOUS ORDERS

Appellants claim the Chancellor erred in his 1985 order by enjoining them from placing across the road any obstruction of a different type, or in a different position, than the gate utilized in September, 1976. The granting or denying of an injunction is a matter falling within the sound discretion of the trial court and its decision will not be reversed on appeal unless it is clearly erroneous. Bassett v. City of Fayetteville, 282 Ark. 395, 669 S.W.2d 1 (1984). Appellants argue that the trial court should allow the wire gate on the perimeter of their property to stand, as the construction of some gate was necessary to protect their property. Granted, the owner of a servient estate may erect gates across the way if they are so located, constructed or maintained as not unreasonably to interfere with the right of passage, and when they are necessary for the preservation and proper and efficient use of the servient estate. Jordan v. Guinn & Etheridge, 253 Ark. 315, 485 S.W.2d 715 (1972). However, the testimony is in sharp conflict as to whether the wire gate, particularly, as opposed to the 1976 metal gate, constitutes an obstruction to the roadway. In this regard, we do not find that the Chancellor’s findings were clearly erroneous.

4. MATTERS NOT BEFORE THE TRIAL COURT

As to the final point argued by appellants, we find that the Chancellor did not err by ruling on issues not properly before the court and further, that the relief granted was proper. The trial court’s finding that the appellants were in contempt merely reiterated the prior orders of 1976.

Affirmed.

Purtle, J., not participating.


author: George Rose Smith, Justice.

text:
    Noah Wayne RUSSELL v. STATE of Arkansas
    CR 86-13
    704 S.W.2d 161
    Supreme Court of Arkansas
    Opinion delivered February 24, 1986

      Grant & Berry, by: Sandra T. Berry, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant was charged with theft by receiving, was found guilty, by Special Judge Laster sitting without a jury, and was sentenced to three years’ imprisonment. The one argument for reversal is that the trial judge was in error in taking into account Russell’s failure to testify in reaching the conclusion that Russell was guilty. The Court of Appeals transferred the case to us.

The State key witness was Mark Goodrum, but Judge Laster said when both sides had rested that he was highly suspicious of Goodrum’s testimony. He went on to say: “There is a great deal here that is unexplained to me. In fact, the case should have been more thoroughly developed. . . . My opinion of Mr. Goodrum’s testimony does not negate culpability of Mr. Russell absent an explanation. We used to call it possession of stolen property. And if you are in possession of stolen property without a reasonable explanation, which I have heard none, this does not give the Court but one alternative, and that is to find him guilty. Now, I am going to order a pre-sentence report.” The judge then announced his finding of guilt and concluded by saying to Russell: “And you will report to the probation officer to complete a pre-sentence report. One thing that troubles me about you is that you didn’t take the witness stand. Now, that is great tactics before a jury, but it is almost useless before a trial lawyer. And this is the reason I am not going to sentence you today. Be back on May 20th at 8:30 in the morning.”

We are unable to say that the judge’s comments about the accused’s failure to testify were directed only to the need for a pre-sentence report. The remarks also indicated that the judge felt that the accused’s silence left the court with no alternative to a finding of guilt. In Griffin v. California, 380 U.S. 609 (1965), the trial judge had instructed the jury that if there was evidence of facts against the defendant which he could reasonably be expected to deny or explain because of facts within his knowledge, the jury might take his failure to testify into consideration as tending to indicate the truthfulness of such evidence. In reversing the conviction the Supreme Court said:

For comment on the refusal to testify is a remnant of the “inquisitorial system of criminal justice,” . . . which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. . . . What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.

Although the Griffin case was an appeal from a jury trial, what the court condemned was a penalty “imposed by courts”; so the Court’s reasoning applies to the present situation. When we view together the trial judge’s references to there being a great deal that was unexplained, to the need for a more thorough development of the proof, to the court’s having only the alternative of a finding of guilt, and to a failure to take the witness stand as being great tactics before a jury but not before a trial lawyer, we cannot fairly say that Russell’s election not to testify was not a factor in the judge’s determination of guilt. We realize, of course, that jurors and trial judges and appellate judges do consider the silence of an accused — that is something no one could expel from his mind — but when that consideration is made a matter of record, it cannot be disregarded.

The State argues that no objection was made to the court’s remarks, but obviously an objection would have been futile. A bell cannot be unrung, nor ink erased from the snow. For that reason it goes almost without saying that a retrial must be before a different judge.

Reversed and remanded.

Purtle, J., not participating.


text:
    Dennis Rex STORY v. AMERICAN STATES INSURANCE COMPANY
    85-277
    704 S.W.2d 162
    Supreme Court of Arkansas
    Opinion delivered February 24, 1986

      Clark & Adkisson, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee.
   George Rose Smith, Justice.

The claims asserted on this appeal arose during the construction of a building in Searcy. The appellee, American States, was the surety on the general contractor’s payment and performance bond. The plumbing subcontractor, Central Mechanical Contractors, Inc., was owned by the appellant, Dennis Rex Story, and his wife Linda. The original plaintiff, Apache Supply Company, sold plumbing materials to Central Mechanical, which used them in the performance of its subcontract. Central Mechanical had financial problems and failed to pay Apache the final balance of about $ 13,000, although Central Mechanical had been fully paid by the general contractor.

Apache, as a materialman, began this litigation by filing suit against American States for the $ 13,000 balance owed to Apache by Central Mechanical. American States denied liability. It also filed a third-party complaint against Central Mechanical and the appellant Story, asserting that if American States should be held liable to Apache, then American States was entitled to judgment over against Central Mechanical and Story, because the general contractor had paid Central Mechanical in full and Story had converted the funds. Upon trial without a jury the court found for Apache against American States and gave American States a judgment over against Story. He appeals and American States cross appeals. The Court of Appeals transferred the case to us under Rule 29(4)(b).

On direct appeal Story first argues that the third-party complaint against him should have been dismissed for want of venue, because the suit was brought in Pulaski County, but he resides in Faulkner County, was served in Faulkner County, and must be sued there. Our Venue Act, however, was amended in 1977 to provide that an action for conversion may be brought in the county where the conversion occurred or where the owner of the converted property resided at the time. Hence the venue was proper if Story had been guilty of conversion.

We think the proof was sufficient. The claim arose because Central Mechanical was in financial trouble and was using new money to pay old accounts. Story tried to disclaim personal responsibility by saying that his wife was the bookkeeper and was in charge of such matters. The trial judge, however, did not have to accept that disclaimer in view of the fact that the husband and wife operated the business together. Furthermore, Mrs. Story evidently looked to her husband for instructions, for when she was asked why she had posted a payment to the wrong account she answered: “At the time I probably couldn’t run Rex down,” so she posted the payment to the wrong account. She also admitted that at times when she had closed her books on a job as being finished and another payment came in, she applied it to another job. At one point she conceded: “Well, okay, I lied then.” The testimony was sufficient to support the trial court’s finding that Story had been guilty of conversion by taking payments that should have been applied to the Searcy job and applying them to other accounts. It is not argued that such conduct would not be a conversion. See Hooten v. State Use Cross County, 119 Ark. 334, 178 S.W. 310, LRA 1916C, 544(1915), and case note, 9 Ark. L. Rev. 72 (1954). Even though Central Mechanical was a corporation, Story is liable for his own torts. As to him the venue was proper.

Story also argues that the third-party complaint was not maintainable because it asserted a claim entirely separate from the principal cause of action against American States, Nolen v. Prickett, 268 Ark. 369, 596 S.W.2d 693 (1980). We do not agree. Apache asserted a cause of action against American States only because the general contractor had paid Central Mechanical for the supplies it had bought from Apache, but the payments had been wrongfully applied to other accounts, leaving American States liable on its bond. Hence, unlike the situation in the Nolen case, the same basic claim was involved; so it was desirable that all parties be brought into one lawsuit and that their conflicting claims be disposed of in a single trial.

Story also argues on direct appeal that if he is liable to American States, he should be credited with the 10% retainage that American State’s principal, the general contractor, was entitled to hold back from its payments to the subcontractor. That contention should have been pressed in the trial court and cannot be asserted for the first time on appeal.

On cross appeal American States insists that the trial court, in addition to entering judgment against Story for the amount recovered by Apache, with interest, should have given American States judgment over for the penalty and attorney’s fee that were recovered by Apache. This argument is not sound. When the suit was brought by Apache, American States could have confessed judgment for the amount claimed and thereby avoided liability for the penalty and attorney’s fee. Instead, it chose to deny liability and force Apache to prove its claim, which it did. The liability for the penalty and attorney’s fee was incurred by American States, not by Story; so the trial court’s judgment was correct.

American States also argues that Apache failed to prove that all the material for which it claims payment actually went into the Searcy job. This was an issue of fact, as to which Apache made a convincing prima facie case which was not overcome by contrary proof. It would serve no useful purpose for us to discuss the facts in detail, which are set forth in the cross appellee’s brief. We cannot say that the trial court’s decision is clearly erroneous.

Affirmed.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    Herman CHAPPELL, et al. v. CITY OF RUSSELLVILLE, ARKANSAS, et al.
    85-245
    704 S.W.2d 166
    Supreme Court of Arkansas
    Opinion delivered February 24, 1986

      Robert E. Irwin, for appellant.

      John Bynum, for appellee.
   Darrell Hickman, Justice.

This is an annexation case. The City of Russellville sought to annex 4,150 acres of contiguous lands. The area sought to be annexed encompasses three irregular tracts of land in the western part of the city, extending Russell-ville’s boundaries uniformly to Lake Dardanelle and the Arkansas River. The city already touched these bodies of water in several places. An election was held and the annexation was approved by a vote of 571 to 210. Several landowners contested the annexation. They alleged the areas were not proper for municipal purposes because they consisted of farmland, swampland and open and unimproved land. After the trial, the court dismissed the complaint, finding the land suitable for annexation. We agree.

A city may annex lands which are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are held to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community, or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective, municipal uses. Ark. Stat. Ann. § 19-307.1 (Repl. 1980). The lands sought to be annexed must meet one of these five criteria. Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985). If a part of the proposed area does not meet one of the requirements, then the annexation of the entire area is voided in toto. Gay v. City of Springdale, 287 Ark. 55, 696 S.W.2d 723 (1985).

All three tracts are west of Highway 7 which divides the city, running north and south. The first tract is north and west of the existing city, encompassing Bona Dea Trails Park. The second tract is the largest, extending the city limits to the Russellville Boat Dock, encompassing a growing residential section. The third tract lies south of the existing city and takes in existing industrial and commercial sites and land along the Arkansas River.

The landowners first argue that some of the land is swampland which runs into a wooded area, and as such, is not suitable for municipal purposes. We held in Holmes v. City of Little Rock, supra, that annexation is not prohibited simply because a tract is rather rugged or heavily wooded with sparse population; the value of the land is derived from its actual and prospective use for city purposes.

The landowners next argue and it is conceded that the annexation contains some farmland. There was an abundance of testimony in this case that all the land being annexed was best suited for residential and commercial purposes rather than for agricultural purposes. Before 1975 lands used for agricultural purposes could not be annexed. Act 309 of 1975 amended the law to provide that agricultural lands could not be annexed if their highest and best use is for agricultural purposes. We interpreted this amendment in Gay v. City of Springdale, supra, and held that the prohibition against annexing agricultural lands is no longer absolute. The lands may be annexed if their highest and best use is for a purpose other than agriculture.

Generally, there was other testimony that some of the lands are being held as suburban property. There are several subdivisions being developed in the area west of the city due to the city’s residential growth in that direction. The mayor testified that the city can adequately provide police and fire protection, animal control, street lights, water and sewage service, and the lands are needed for orderly growth and development. The chief of police and fire chief testified that the annexation would assist with police and fire protection because in some places the city limits could not be determined. The annexed land would even the city’s boundaries, advancing them to natural or man-made boundaries, such as highways.

The trial court made specific findings of fact, including findings that much of the lands represent the actual growth of the city beyond its legal boundary; the lands are needed for extension of police and fire protection; the lands are valuable by reason of their adaptability for prospective municipal purposes; and although some acreage is presently used for agricultural purposes, the highest and best use of these lands is for purposes other than their present use. On appeal our decision is limited to determining if these findings are clearly wrong. ARCP Rule 52, Holmes v. City of Little Rock, supra. They are not in this case.

For all practical purposes, we overruled Saunders v. City of Little Rock, 257 Ark. 195, 515 S.W.2d 633 (1974), with our decision in Holmes v. City of Little Rock, supra, and Gay v. City of Springdale, supra. We rejected the narrow approach we took in Saunders where we upheld the voiding of the proposed annexation of 55 square miles to the City of Little Rock. We no longer have that constrained approach to annexation cases. To that extent, Saunders is overruled.

Affirmed.

Purtle, J., not participating.


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

text:
    Norman N. HESSER, et al. v. R.J. JOHNS, et ux.
    85-146
    704 S.W.2d 165
    Supreme Court of Arkansas
    Opinion delivered February 24, 1986

      Carl W. Behner, for appellant.

      Raymond C. Smith, for appellee.
   Darrell Hickman, Justice.

The parties are adjoining landowners of realty located in Washington County. This cause was filed in chancery court seeking an injunction, damages for trespass, quiet title in the appellees, and a determination of a boundary line. An answer was filed claiming this was a trespass action which should be tried in a law court. A motion to transfer was made in the alternative to dismissal. Essentially one argument is made on appeal: the chancery court lacked jurisdiction. The record presented to us on appeal consists of the pleadings, the order of the court, and some of the chancellor’s remarks at the close of the case. Based on the record and arguments before us, the chancery court did not have jurisdiction, and the cause should have been transferred to the circuit court.

Toa large extent we cannot say what posture the parties took during the trial regarding the relief requested, prayers amended, or the facts proved, because we do not have the transcript of the testimony. We cannot presume facts. We do know that the complaint sounded in trespass. The trial court found trespass, entered an injunction, and transferred the case to the circuit court to hear the damages issue. The question of whether a court has jurisdiction over the subject matter of an action is determined from the allegations in the complaint. Scroggins v. Bowen, 249 Ark. 1155, 464 S.W.2d 79 (1971).

In this case the only basis for chancery jurisdiction was a request for quiet title. But there was no allegation of possession, a prerequisite for such a cause of action. Ralston v. Powers, 269 Ark. 63, 598 S.W.2d 410 (1980). The chancellor in his order found he had jurisdiction, but the record is devoid of an order reflecting any change in the allegations to the complaint amending the fatal defect.

It is significant in this case that the appellees made an attempt to supplement the record after the appellants’ brief was filed claiming that the record filed with the court does not contain all the necessary pleadings. No statement was made regarding what specific pleadings or orders were absent and what they would show. The appellants argued specifically the complaint failed to allege possession. We denied the motion because it was untimely. It was the appellees that chose the forum for their action, and they failed to allege facts establishing the court’s jurisdiction.

Reversed.

Purtle, J., not participating.

Dudley, J., concurs.

Robert H. Dudley, Justice,

concurring: The issue is whether the chancery court had jurisdiction. Jurisdiction of the court of equity in a quiet title action can only be invoked by a plaintiff in possession. Ralston v. Powers, 269 Ark. 63, 598 S.W.2d 410 (1980). Possession must be pleaded because equity’s jurisdiction is tested by the allegations of the complaint. Scroggins v. Bowen, 249 Ark. 1155, 464 S.W.2d 79 (1971). The determining issue in this case is whether appellants pleaded possession. They did not plead possession. They pleaded, “Petitioners are residents of and land owners in Washington County, Arkansas.” The allegation of residency in the county is not an allegation of possession of the land in dispute. The allegation of land ownership in the county is not an allegation of possession of the land at issue. Possession simply is not pleaded. Therefore, equity does not have jurisdiction.


author: Robert H. Dudley, Justice.

text:
    Leonard HAYWOOD v. STATE of Arkansas
    CR 85-130
    704 S.W.2d 168
    Supreme Court of Arkansas
    Opinion delivered February 24, 1986

      Leslie R. Ablondi, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was charged in 1980 with first degree murder and with being an habitual offender, having at least four prior felony convictions. He entered into plea negotiations which culminated in his pleading guilty to second degree murder and being sentenced as an habitual offender to twenty years imprisonment, the minimum sentence for an habitual offender with four prior convictions. At the time appellant entered his plea he stated that he had been found guilty on four occasions.

In 1984 appellant filed a petition in circuit court for a writ of mandamus seeking to vacate the plea. The court treated it as a petition under our post-conviction Rule 37. Petitioner contended that his attorney did not advise him that he was to be sentenced as an habitual offender and misinformed him as to his parole eligibility date. After a hearing at which both counsel and appellant testified, the trial court denied the petition. We affirm.

Appellant’s petition is based solely on the contention that counsel did not accurately explain to him when he would be eligible for parole. He does not contend that the trial court failed to comply with the requirements of A.R.Cr.P. Rule 24 which sets out the standards governing the court’s receipt of a guilty plea. Nor does he contend that he was in fact not guilty. The public defender who represented him during the plea negotiations testified that he explained the effect of being sentenced as an habitual offender, but that he did not make it a practice to advise defendants about parole eligibility.

The two-part test for challenging the effectiveness of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). The United States Supreme Court has held that the test applies to challenges to guilty pleas. Hill v. Lockhart, - U.S. -, 106 S. Ct. 366 (1985). The first part of the test requires the petitioner to show that the counsel’s representation was not within the range of competence demanded of attorneys in criminal cases. Hill v. Lockhart, supra; McMann v. Richardson, 397 U.S. 759 (1970). A defendant who pleads guilty upon the advice of counsel may not collaterally attack the voluntary and intelligent character of the guilty plea merely by demonstrating that some advice received from counsel was erroneous; rather, the question is whether counsel’s advice was competent, taking into account the inherent uncertainty in advising a client about pleading guilty. The United States Constitution does not require the state to furnish the defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary, and erroneous advice on parole eligibility does not automatically render a plea involuntary. Hill v. Lockhart, supra.

The second part of the Strickland test which the petitioner must satisfy is to show such prejudice resulting from counsel’s errors that there is a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, - U.S -, 106 S. Ct. at 370 (1985).

Appellant did not satisfy the Strickland test. First, appellant’s counsel testified that he did not make it a practice to advise defendants about parole eligibility. As stated previously, there is no constitutional requirement for him to do so. Therefore, his action, or inaction, in that regard, did not fall outside the range of competence demanded of attorneys in criminal cases. Since the first part of the Strickland test was not met, it is not necessary to reach the second part. We conclude, however, that even if appellant had been able to satisfy the first part of the Strickland test, his allegations are not sufficient to satisfy the “prejudice” requirement of Strickland. See Strickland, supra. Appellant did not allege that he would have insisted on going to trial. Instead, his testimony was that there was “no telling” whether he would have pleaded guilty had he been informed about parole eligibility for habitual offenders.

Affirmed.

Purtle, J., not participating.


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

text:
    David CAMP v. STATE of Arkansas
    CR 85-162
    704 S.W.2d 617
    Supreme Court of Arkansas
    Opinion delivered February 24, 1986
    [Rehearing denied March 31, 1986.]

      Byron Thomason and J.G. Mol les ton, for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.

       Purtle J., not participating.

   Steele Hays, Justice.

David Camp was convicted of committing incést with his minor stepdaughter, in violation of Ark. Stat. Ann. § 41-2403. He was sentenced to ten years imprisonment and a fine of $10,000. On appeal, we affirm the judgment.

For reversal, Camp first argues that the trial court erred in refusing to direct a verdict of acquittal because there was no corroboration of the stepdaughter’s testimony. The argument is predicated on the wording of Ark. Stat. Ann. § 41-2403, reciting that a person commits incest if, being sixteen years of age or older, he purports to marry, has sexual intercourse with, or engages in deviate sexual activity with, a person he knows to be (a) an ancestor or a descendant; or (b) a stepchild or adopted child.

Since the stepdaughter was sixteen years old when the sexual intercourse allegedly occurred, Camp argues that she could have been charged with incest under § 41-2403 as readily as he and, therefore, she is an accomplice whose testimony must be corroborated in accordance with Ark. Stat. Ann. § 43-2116, which provides that a conviction may not be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense.

Camp cites Teel v. State, 129 Ark. 180, 195 S.W. 32 (1917), and Hicks v. State, 219 Ark. 528, 243 S.W.2d 372 (1951) for the proposition that if the incest “victim” is sixteen years old or older when the offense occurs then she is an accomplice if the act occurs with her consent. We are not persuaded by those cases, primarily because there was no proof the intercourse was with the consent of the stepdaughter, and ample proof to the contrary: the child was seven or eight years old when her mother married David Camp; she had lived in the same household with him for eight years in a parent-child relationship; her own father was dead; she testified that her stepfather, who was thirty-eight, told her younger sisters to stay at the house while he and the older girl went to the barn, where he began fondling her. After he had removed her blue jeans and under garments he had intercourse with her. When he had finished he told her she could go back to the house. The next morning she and her boyfriend ran away to his sister’s home in Florida “to get away from David.” She called her mother after a few days and agreed to come back when her mother told her “something would be done about it.” On her return she went directly to her minister where she told the minister and a social worker about the situation; after her return she stayed, not at home, but with friends. Finally, referring to the incident, she testified that that was the last time “she was going to put up with it.” Giving that proof its highest and strongest probative value, we can easily say the intercourse was not with her consent, and, accordingly, we conclude her testimony did not require corroboration. Johnson v. State, 288 Ark. 158, 702 S.W.2d 797 (1986).

On the same premise appellant argues that Ark. Stat. Ann. § 41-2403 violates the due process clause and the equal protection clauses of the Fourteenth Amendment to the United States Constitution and Article 2, Section 18, of the Arkansas Constitution.

Camp argues that had she been his natural sixteen year old daughter, the stepdaughter too could have been convicted of incest under § 41-2403 (a) for having sexual intercourse with an ancestor. It follows, he insists, that he cannot be convicted of incest without her corroboration of her testimony. But, as with the first point, the argument presupposes consent and, as we have already seen, we are unwilling to assume that critical fact when the proof plainly suggests the contrary.

That the legislature chose sixteen years as the age of accountability for purposes of incest does not mean that it also intended that when an unwilling victim of incest is sixteen then corroboration is required. We cannot agree to write that into the statute on the facts of this case. Moreover, the Criminal Code specifically provides that one who is the victim of the offense is not an accomplice. See Ark. Stat. Ann. § 41-305 (Repl. 1977). The commentary states:

(a) It seems clear that the victim of a crime should not be held as an accomplice in its perpetration, though his conduct in a sense assists in the commission of the crime. The businessman who yields to the extortion of a racketeer, the parent who paid ransom to the kidnapper, may be unwise or even may be thought immoral; to view them as involved in the commission of the crime confounds the policy embodied in the provisions; it is laid down, wholly or in part, for their protection. So, too, to hold the female an accomplice in a statutory rape on her person would be inconsistent with the legislative purpose to protect her against her own weakness in consenting, the very theory of the crime.

Appellant notes that while § 41-2403 (a) covers descendants as well as ancestors, § 41-2403(b) applies only to stepparents, suggesting the language creates a dichotomy of criminal responsibility between stepchildren and natural children, as well as of corroborative proof as to stepparents and natural parents. We concede a distinction between persons in a step relationship, but, for reasons already discussed, we find no distinction between step and natural parents on the requirement of corroboration. In either case if the “victim” is in fact a victim, she, or he, is not an accessory. Ark. Stat. Ann. § 41-305.

As to the supposed dichotomy between natural parents and stepparents, we are not persuaded that the disparate treatment of the statute is not intentional, or that it lacks a rational basis. The commentary to § 41-2403 points out that stepchildren and adopted children have been added to the crime of incest because society is as concerned with the integrity of the family, including step and adoptive relationships as well as those of blood relationships, and sexual activity is equally disruptive, whatever the makeup of the family. Indeed, this case presents a classic example of the impact of such offenses upon the family: the mother and stepfather are evidently estranged and living apart, the stepdaughter became a runaway to escape the situation and even on her return is living elsewhere, thus, the disruption of the family is complete.

We are obliged to assume the legislature meant what it clearly said in § 41-2403, City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977), and it may have assumed that the incidence of adult stepchildren becoming victims of incest was rare enough to warrant exclusion from the coverage of the statute. At any rate, appellant has cited nothing to challenge the presumption of constitutionality of this statute, Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983), nor that a rational basis for the distinction noted does not exist. In Schock v. Thomas, Comm’r, 274 Ark. 493, 625 S.W.2d 521 (1981), we stated the rule:

The equal protection clause does not require that all persons be dealt with identically; it only requires that classifications rest on real and not on feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that the different treatment be not so disparate as to be arbitrary. United States v. Ecker, 543 F.2d 178 (1976); Walters v. City of St. Louis, 347 U.S. 231 (1954); Skinner v. Oklahoma, 316 U.S. 535 (1942).

We do not reach appellant’s remaining argument — that the trial court wrongly refused to instruct the jury on the issue of corroboration — because the proferred instruction is neither in the abstract nor the record. Chapman v. State, 201 Ark. 91, 143 S.W.2d 575 (1940). Rule 11(f) Rules of the Arkansas Supreme Court and Court of Appeals.

The judgment appealed from is affirmed.

Newbern, J., concurs.

Purtle, J., not participating.

David Newbern, Justice,

concurring. The entire argument of the appellant is based on the lack of corroboration of the stepdaughter’s testimony. He says his conviction was thus in violation of Ark. Stat. Ann. § 43-2116 (Repl. 1977) which requires testimony of an accomplice be corroborated to serve as the basis of conviction of a felony.

It may be that when a teenaged stepdaughter accuses her stepfather of incest after which she leaves town with her boyfriend the policy of requiring corroboration should be at its strongest. However, the defendant in a case like this finds himself in a logically indefensible position. To argue the stepdaughter was an accomplice he must admit the act.

Therefore, while I agree with the result reached by the majority, I do so only on the basis of finding the appellant’s argument flawed and unpersuasive. I particularly disagree with the majority’s conclusion that the evidence recited showed Karen Vickers was a non-consenting “victim.”


author: Steele Hays, Justice.

text:
    Phillip VANCE v. STATE of Arkansas
    CR 85-181
    704 S.W.2d 170
    Supreme Court of Arkansas
    Opinion delivered February 24, 1986

      William R. Simpson, Jr., Public Defender, Jerry Sailings, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

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

Phillip Vance was convicted of aggravated robbery and theft of property in connection with the January 18,1985 robbery of a Little Rock branch bank. On April 1,1985 the circuit court noted that the defense of mental disease or defect might be raised and ordered that Vance be examined at the Pulaski County jail by a psychiatrist then under contract to provide psychiatric services at the jail. The order directed the examining psychiatrist to notify the court of the defendant’s fitness to proceed and the requirements of further psychiatric examination if necessary.

On April 6 the psychiatrist responded on a form stating that he had conducted a psychological competency screening of Phillip Vance to determine competency, with the following result:

“ X not with psychosis and competent to stand trial.”

At a later hearing the public defender asked the court to order an additional evaluation in view of information that Vance had been discharged from the Navy with mental disability, had been hospitalized in San Francisco, for mental problems, had had an injury of some kind to his head requiring surgery, and had been discharged from the Arkansas State Hospital on January 17, 1985, the day before the robbery from which these charges arose.

The court declined to order any further screening and the jury found Phillip Vance guilty, rejecting testimony by a psychiatrist who examined Vance at the Arkansas State Hospital in January, 1985, and had diagnosed him as having a psychotic illness — chronic schizophrenia, paranoid type, with acute exacerbation. Concurrent sentences of thirty years for aggravated robbery and twenty years for theft of property were imposed.

Vance has appealed on the premise that his due process rights were violated by the trial court’s failure to order a forensic psychological evaluation. We think the argument must be sustained.

Ark. Stat. Ann. § 41-605 provides that when the court has reason to believe mental disease or defect of the defendant will become an issue, or there is reason to doubt the defendant’s fitness to proceed, the court shall order that the defendant undergo examination by one or more qualified psychiatrists at a local regional mental health center or clinic, or shall appoint at least one qualified psychiatrist to make an examination and report on the defendant’s mental condition, or shall commit the defendant to the Arkansas State Hospital, or other suitable facility, for an examination for thirty days, or such longer period as the court deems necessary. The statute provides for such further examination and observation as may be warranted.

The report required by the statute “shall include the following: (a) a description of the nature of the examination; (b) a diagnosis of the mental condition of the defendant; (c) an opinion as to his capacity to understand the proceedings against him and to assist effectively in his own defense; (d) an opinion as to the extent, if any, to which the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired at the time of the conduct alleged [.]”

The report in this case told the court virtually nothing and was palpably in noncompliance with the statute. In light of the insufficient report, coupled with Vance’s history of mental illness, further observation and examination as contemplated by the statute should have been ordered.

Reversed and remanded.

Purtle, J., not participating.


author: Josephine L. Hart, Special Justice. George Rose Smith, Justice,

text:
    APAC-MISSISSIPPI, INC. v. DEEP SOUTH CONSTRUCTION COMPANY, INC., R.M. COURSON, INC. and Patsy THOMASSON, et al.
    85-118
    704 S.W.2d 620
    Supreme Court of Arkansas
    Opinion delivered February 24, 1986
    [Rehearing denied March 31, 1986.]

      William B. Miller of Friday, Eldredge & Clark, by: Oscar E. Davis, Jr. and John Dewey Watson, for appellant.

      Arnold, Hamilton & Streetman, by: Herman L. Hamilton, Jr., for appellees.

       Purtle, J., not participating.

   Josephine L. Hart, Special Justice.

Deep South Construction Company, Inc. and R.M. Courson, Inc., Appellees, filed an action for injunction against Patsy Thomasson, et al. in their representative capacities as members of the Arkansas Highway Commission and Henry Gray as Director of the Highway Commission in the Chancery Court of Pulaski County, Arkansas, seeking an injunction against the Arkansas State Highway Commission and the Arkansas State Highway and Transportation Department prohibiting them from awarding a construction contract on Job No. 2660 in Drew County, Arkansas. A temporary injunction was entered enjoining the Arkansas Highway Commission and the Arkansas State Highway and Transportation Department from entering into a contract with Appellant, APAC-Mississippi, Inc. APAC intervened alleging that they were the apparent low bidder and entitled to receive the contract. It is undisputed that Appellant, APAC, submitted a low bid of $2,017,213.85 and that the next lowest bid was Appellee with a bid of $2,036,095.90.

The controversy presented involves Act 102 of 1977, commonly referred to as the “Preference Statute.” Appellees, Deep South Construction Company, Inc. and R.M. Courson, Inc., contended in Chancery Court that although Appellant’s bid was the lowest dollar bid, they were entitled to the contract because they were the next lowest bidder and fell within the provisions of Act 102 of 1977 and that Appellants had not complied with Act 102. Act 102 gives complying bidders the contract if their bid is less than 3% above the lowest bid, provided that the lowest bidder has not complied with Act 102.

Both Appellant and Appellee filed motions for summary judgment. The Chancellor entered summary judgment for Ap-pellee, dissolved the temporary injunction but declared that Act 102 applied to the Highway Commission; found that APAC failed to comply with the provisions of Act 102 and upheld the constitutionality of Act 102.

APAC appealed contending the following: (1) that provisions of Act 102 of 1977 do not apply to contracts awarded by the Arkansas State Highway Commission; (2) assuming that Act 102 of 1977 applies to contracts awarded by the Arkansas State Highway Commission that Appellant has complied with the provisions of that Act; and (3) that the Act is unconstitutional.

The pertinent provision of Act 102 as applied in this context gives preference to a bidder who has paid taxes to one or more counties on either real or personal property used or intended to be used in the performance of construction contracts where the next low bid was less than 3% above the lowest dollar bid. Appellant’s assertions that Act 102 should not apply to contracts awarded by the Arkansas State Highway Commission is founded in Section 1 of Act 102 which provides:

In awarding contracts covered by the provisions of Act 159 of 1949, as amended, by Act 183 of 1957, bids of contractors who have satisfactorily performed prior contracts, and who have paid taxes for not less than two (2) successive years immediately prior to submitting a bid under the Arkansas Employment Security Act, and amendments thereto, and either the Arkansas Gross Receipts Act and amendments thereto or the Arkansas Compensating Tax Act and amendments thereto, on any property used or intended to be used for or in construction or in connection with the contractors construction business, and further within the two (2) year period have paid any taxes to one (1) or more counties [school districts, or municipalities] of the State of Arkansas on either real or personal property used or intended to be used in performance of or in connection with construction contracts, shall be deemed a better bid than the bid of a competing contractor who has not paid such taxes, whenever the bid of the competing contractor is less than three percent (3%) lower, and the contractor making a bid as provided by this Act which is deemed the better bid, shall be awarded the contract.

Appellant argues that Act 102 only applies to contracts covered by the provisions of Act 159 of 1949. An exact reading of Act 102 limits application of that Act to contracts “covered by Act 159 of 1949, as amended, by Act 183 of 1957 . . .”

Act 159 provides the procedure to be followed by the State when letting contracts for making permanent improvements where the estimated costs exceeds ten thousand dollars. Nothing in Act 159 of 1949 refers to the Highway Commission but deals with the general procedures to be followed by public agencies entering into contracts.

Appellant’s argument that Act 159 excludes the Highway Commission from the provisions of that Act rests solely on an amendment to Act 159 which was enacted in Act 370 of 1977, the same legislative session which enacted Act 102. The preamble of Act 370 of 1977 states “An Act to Amend Section 2 and Section 5 of Act 159 of 1949, to Allow for the Downward Negotiation of Bids for Public Buildings and Improvements in Those Instances Where All Bids Exceed the Amount Appropriated for Such Projects, To Exclude Certain Construction Work; and for Other Purposes.”

Section 2 of Act 370 states:

“Section 5 of Act 159 of 1949 is amended to read as follows:
Section 5. The provisions of this Act shall not apply to contracts awarded by the Arkansas State Highway Commission for construction or maintenance of public highways, roads or streets, under the provision of Act 65 of 1929, as amended, and laws supplemental and amendatory thereto . . .”

Appellant urges that Act 370 passed in 1977 which amended Section 2 and Section 5 of Act 159 has the effect of changing Act 159 to the same effect as if it had been originally enacted with the exclusion of highway contracts. Appellant seeks to give the plain meaning to the language without regard to the intent of the legislature. In support of this position, Appellant argues that Act 65 of 1929, which relates to construction of state highways, should apply and is in conflict with Act 102. Act 65 provides in Section 18 and 21 that all contracts shall be “let to the lowest bidder.”

A closer inspection of the background and purposes of Acts 102, 159 and 370 does not support Appellant’s contentions.

The basic preference provisions of Act 102 were originally found in Act 264 of 1961. Act 264 was found to be unconstitutional in Rayco Construction Company v. Vorsanger, 397 F. Supp. 1105 (E.D. Ark. 1975) and Act 102 was created to comply with the dictates of the Federal Court ruling and to give a constitutionally sound base to the preferential statutes which had previously been enacted as Act 264. The original preference Act, Act 264, stated, as does Act 102, that it applied to all contracts governed by Act 159 and would therefore apply to the State Highway Commission. No indication was given in Act 102 that it would not apply to the Highway Commission. If that was the intention of the Legislature, that exclusion should have been placed on the face of the Act.

A further reading of Act 370, which amends Act 159, states in its preamble that the purpose of the Act was to “Allow for the Downward Negotiation of Bids for Public Buildings and Improvements. . . .” Section 1 provides for downward negotiation and Section 2 excludes Arkansas Highway Commission contracts from Act 159. Given the stated purpose of Act 370, this exclusion should be read only to remove highway contracts from the downward negotiation provisions and not from the requirements of the formal bidding procedure set forth in Act 159.

Further, Acts 370 and 102 were both passed in the 1977 Legislative Session. Inasmuch as they were passed at the same time, it is clear that the drafters intended that Act 102 would apply to all contracts included in Act 159 as that Act read before the amendment set out in Act 370. Any other reading of these Acts would repeal the application of 102 through an indirect manner and would effect a “repeal by implication” which is not favored in statutory interpretations.

Secondly, Appellant argues that even if Act 102 is applicable to contracts awarded by the State Highway Commission, that it has complied with the Act by paying taxes which went to one or more counties and thus qualifies for the preference equally with Appellee and should therefore be awarded the contract. Act 102 provides that in order to qualify as a “preferential contractor”, the bidder must, in addition to other things, pay “any taxes to one or more counties, school districts or municipalities of the State of Arkansas on either real or personal property used or intended to be used in performance of or in connection with construction contracts ...”

When Appellant submitted a bid on Job No. 2660, it certified that it had paid Arkansas real or personal property tax in Chicot County. The tax records of Chicot County show that Appellant had never assessed such taxes until 1985. Appellant now contends that the payment of vehicle registration fees and motor fuel taxes under an agreement with the State of Mississippi, a portion of which is eventually paid to counties in Arkansas is sufficient payment to meet the requirement of Act 102 which provides that “. . . contractors . . . have paid any taxes to one (1) or more counties, [school districts or municipalities] of the State of Arkansas on either real or personal property used or intended to be used in performance of or in connection with construction contracts . . .”

We find that payment of taxes under the Arkansas Gross Receipts Act or the Arkansas Compensating Tax Act or other interstate tax agreements does not meet this requirement. Appellant certified at the time it placed the bid it had complied with this Act by paying taxes in Chicot County. It is now undisputed that no taxes were paid directly to Chicot County by Appellant. Obviously, the legislative intent in this instance was that payment of taxes be made directly to the county tax collector and not to a state agency which would ultimately remit a portion of taxes collected by the State of Arkansas to each county.

Appellant’s third and final argument is that Act 102 is unconstitutional. Appellant contends that the equal protection clause forbids invidious discrimination by an agency of government between United States citizens. They argue that 102 violates the Fourteenth Amendment to the United States Constitution because it affords unequal, and arbitrary treatment among contracting companies with competing bids for a particular job and it affords such treatment without a rational basis for doing so. Appellant and Appellee both contend that economic legislation such as the case at bar is subject to a rational basis test. Appellant relies primarily on Rayco Construction Company, Inc. v. Vorsanger, supra, which held that Act 264 of 1961, the predecessor to Act 102, was unconstitutional. Act 102 is substantially different from Act 264. Act 264 contained criminal sanctions and required prior performance of public contracts. Rayco, supra, held Act 264 of 1961 unconstitutional because it violated due process in providing for criminal sanctions. The Court in Rayco, supra, also stated that the Act violated the equal protection clause. There the Court stated:

As to the property ownership and tax payment criteria, we will say first that it is highly questionable today whether a state can constitutionally differentiate between contractors on the basis of property ownership or tax payments. Certainly, such a differentiation can be upheld only by a showing of a sufficient state interest to justify it.

We find, as did the Court in Rayco, supra, that a state may validly differentiate between contractors provided it has a legitimate interest and the classification has some rational basis. Here, the State has an interest to provide safeguards and procedures where public funds are expended for highway purposes. Also, the State has an interest in granting a preference to those who contribute to the State’s economy through construction activities within the State. The State has a legitimate and substantial interest in granting the preference and the criteria established in 102 are reasonable and non-discriminatory, thus providing a rational basis for this Act.

We affirm.

George Rose Smith, J., concurs.

Purtle and Hays, JJ., not participating.

George Rose Smith, Justice,

concurring. The court’s opinion answers all the arguments presented by the appellant; so I agree that the judgment should be affirmed. Nevertheless, I have misgivings about whether Act 102 of 1977, Ark. Stat. Ann. §§14-614.2 etseq. (Repl. 1979), creating the 3% preference, applies to highway construction contracts entered into by the Highway Commission.

Act 102 states in its first sentence that it applies to “contracts covered by the provisions of Act 159 of 1949, as amended.” Act 159 is compiled as Sections 14-611 to -614 of the statutes. It governs public contracts “for the making of major repairs or alterations, or for the erection of buildings or other structures, or for the making of other permanent improvements,” where the estimated cost exceeds $10,000. Section 14-611. Section 3 of Act 159 goes into detail by providing that the general contractor shall offer separate subcontracts for the plumbing, heating, ventilating, air conditioning, electric wiring, and roofing and sheet metal work. Section 41-613. As I read Act 159, it applies only to public contracts for the erection or repair of buildings and similar improvements, not to the construction of highways. Consequently, since the preference statute applies only to Act 159 contracts, it does not apply to the contract involved in this case.

This contract, as prepared by the Highway Commission, did provide that the contract awarded would be governed by the preference statute. The Commission, however, is required to let the contract to the lowest responsible bidder. It cannot change the law by voluntarily subordinating its contracts to the preference statute, even under the misapprehension that it is required to do so.

I write this concurrence because if there is an omission in the statutes that needs to be corrected, the legislature may want to make an appropriate amendment. In any event, the point is likely to arise again and perhaps should be taken into account by the Highway Commission and those bidding for its contracts.