author: Per Curiam. Tom Glaze, Justice,

text:
    STATE of Arkansas v. TIEN Ngoc Doan and Trung Do
    CR 96-348
    929 S.W.2d 155
    Supreme Court of Arkansas
    Opinion delivered September 23, 1996
    [Petition for rehearing granted in part and denied in part November 11, 1996]

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., for appellant.

      Sam Sexton III and Jeanne Ann Whitmire, for appellees.
   Per Curiam.

The appellees in this case, Tien Ngoc Doan and Trung Do, move to affirm the pretrial order of the Sebastian County Circuit Court suppressing their confessions. The State appealed the order, and on March 18, 1996, the record was filed with the clerk of this court. The State’s original brief was due on April 27, 1996. According to the records of the Clerk of this court, a seven-day clerk’s extension was first obtained and then this court granted the State six extensions of time in which to file its brief: (1) May 6, 1996; (2) May 22, 1996; (3) June 10, 1996; (4) June 21, 1996; (5) July 2, 1996, and (6) July 13, 1996. The extension granted on July 13, 1996, was designated a final extension and required that the State’s brief be filed by July 26, 1996. The State’s brief was not filed by that deadline.

On June 3, 1996, this court issued a per curiam opinion in a case where the State had obtained nine extensions in which to file its brief in a State appeal. State v. Parkman, 325 Ark. 35, 923 S.W.2d 281 (1996). In Parkman, we noted that the State had obtained three extensions beyond the date of the final extension. We concluded that if the State’s brief was not filed by a date certain, the appeal would be dismissed. The brief was not filed by that date, and the appeal was dismissed on June 24, 1996. We stated in Parkman:

Henceforth, we will not entertain appeals by the State when the State’s brief is not filed in accordance with the specified deadline in the final extension granted by this Court.

325 Ark. at 36, 923 S.W.2d at 282.

The Attorney General in the case before us has filed a response to the appellees’ motion to affirm in which it is stated that the staff attorney assigned to the case has been replaced. The Attorney General states that he cannot explain why the original counsel missed the deadline and apologizes for the lapse. We note, nonetheless, that the Parkman per curiam opinion was handed down on June 3, 1996, which was well before the final deadline granted by this court in the instant case of July 26, 1996. In accordance with our clear directive in the Parkman per curiam, we affirm the order of the trial court and dismiss the State’s appeal.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. Appellees Tien Ngoc Doan and Trung Do are charged with the murder of Thavone Mousom and with engaging in violent criminal group activity. Appellees retained an Oklahoma attorney who first advised them to refuse to give any statement. After charges were actually filed against appel-lees, they executed a waiver-of-rights form on advice of their attorney and gave incriminating statements. Tien and Trung then pleaded guilty, but the trial court later set aside their pleas because their attorney was not licensed in Arkansas. The trial court granted appellees’ motion to suppress their statements, and the State filed this interlocutory appeal.

In this appeal, the Attorney General’s office has been granted six extensions for a total of eighty-nine days in order to file its brief. The last extension was designated final extension. The State has now tendered its brief, but the majority court has refused the brief and dismissed the State’s appeal.

I write to point out that this court has never dismissed an appeal in a criminal case because a brief was tendered late. Over the past two years, this court has routinely allowed belated briefs to be filed by appellants who were convicted defendants with counsel. For some reason, the court now unfairly dismisses the State’s appeal because it was eighty-nine days late. In 1994 and 1995, this court allowed defendants, who were convicted and appealed, to file briefs that were later than eighty-nine days and after final extensions were granted. Examples of those cases are as follows:

No reason exists for treating the State more harshly when it files a late brief than a convicted defendant when his or her attorney is late. Nonetheless, under today’s decision, when an attorney representing a convicted defendant is late, as described above, this court still accepts the brief, but not so, if the attorney represents the State. Obviously, it is the public, not the State’s attorney, who will unjustifiably suffer the consequences. In simple terms, the majority court’s per curiam is wrong.


source: Caselaw Access Project

author: BRADLEY D. Jesson.

license: Public Domain

text:
    JONES-BLAIR COMPANY v. Lucy HAMMETT, d/b/a Conway Carpets and Interiors
    95-1359
    930 S.W.2d 335
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      Jeffrey Hines Moore, for appellant.

      Charles Edward Clawson, for appellee.
   BRADLEY D. Jesson.

Jones-Blair Company appeals from a $39,819.90 judgment entered against it in Faulkner County Circuit Court. It seeks a new trial on the ground that its attorney was allowed to withdraw from the case in violation of ARCP Rule 64(b). We agree that a new trial is warranted and therefore reverse and remand.

This appeal was originally filed in the Arkansas Court of Appeals. See Jones-Blair Co. v. Hammett, 51 Ark. App. 112, 911 S.W.2d 263 (1995). We granted review of the case pursuant to Arkansas Supreme Court Rides 1 — 2(f)(1) and l-2(a)(3). Three issues are presented on appeal: 1) whether Jones-Blair may receive a new trial on the ground that its attorney withdrew in violation of ARCP Rule 64(b); 2) whether the trial judge should have granted Jones-Blair’s motion to extend time to file its notice of appeal; and 3) whether the evidence is sufficient to support, the judgment. We agree with Jones-Blair that it is entitled to a new trial due to the circumstances under which its attorney was allowed to withdraw. We reverse and remand on that ground, making discussion of the other issues unnecessary.

This case has its genesis in a 1982 contract entered into between Jones-Blair, a Texas paint and wall-covering supply company, and Lucy Hammett, doing business as Conway Carpets and Interiors. The business relationship between the parties was, apparendy, never a smooth one. In November of 1988, Jones-Blair contacted Faulkner County attorney David Reynolds for the purpose of collecting a $6,779.34 delinquency on Hammett’s account. Reynolds filed suit on Jones-Blair’s behalf on January 3, 1989. Hammett answered, denying the allegations in the complaint. She also filed a counterclaim in which she alleged Jones-Blair had committed certain accounting errors, had failed to reimburse her for promotional materials, and had tortiously interfered with her customer contracts.

In the course of his representation, Reynolds took Hammett’s deposition and forwarded it to Jones-Blair on May 15, 1989. In a letter accompanying the deposition, Reynolds asked Jones-Blair to conduct a review and advise on how to proceed. Five months later, Reynolds received a letter from credit analyst James Holt. Holt said he had inherited the account from the previous credit manager and noticed there was no correspondence in the file regarding the status of the case. He requested an update and a recommendation on how to proceed.

The record is bereft of any further activity in the case for nearly a year. Then, in August of 1990, David Reynolds was appointed circuit/chancery judge for Faulkner County. He filed a motion to withdraw from the case and asked that his law partner, Richard W. Atkinson, be named attorney of record. Atkinson was so named on October 5, 1990, and the case was set for nonjury trial on February 11, 1991. The record gives no indication that Jones-Blair was notified of this trial setting or of Atkinson’s entry of appearance.

For reasons not revealed on the court’s docket sheet, the February 11, 1991 trial did not take place. In October of 1992, the case was reset for trial on January 27, 1993. Upon learning of the trial setting, Atkinson wrote to Jones-Blair for the first time. His October 22, 1992 letter reads as follows:

This appears to be a case which I inherited from a former law partner, David Reynolds. Please find enclosed a copy of a transfer order and a copy of [Hammett’s attorney’s] letter informing me that the case has been set for trial on January 27, 1993 at 9:00 a.m.
My file indicates no correspondence with you on this case. I am undertaking at this time a review of the file and a discussion with Judge [David] Reynolds to find out exacdy what’s going on in this case. Please contact me as soon as possible and let me know how you wish to proceed.

Larry Steele, a credit analyst at Jones-Blair, responded to Atkinson’s correspondence by the following letter dated November 10, 1992:

According to our records, we charged off the [Hammett] account in the amount of $7222.14 in 1990.
As for further litigation, we would like to have the particulars in regard to fees, court costs, etc...Thank you.

After reading the above correspondence, Atkinson feared that Jones-Blair did not understand that Hammett’s counterclaim was still active. He composed the following letter, dated December 3, 1992:

I am in receipt of your letter of November 10. I am not sure you are aware of the fact that this is still an active case in Faulkner County Circuit Court. Mrs. Hammett has a counterclaim against your company that is still pending. Even if you dismiss your suit against Mrs. Hammett, she is not willing to dismiss the counterclaim. If you do not authorize me, or retain other counsel and appear on the 27th day of January, the judge will enter a default judgment against Jones-Blair.
My fee is $100 per hour. If I do not hear from you within a reasonably short period of time, I will ask the court for permission to withdraw as attorney of record in this case. Looking forward to hearing from you.

Jones-Blair claims it never received this letter.

On January 27, 1993, the day of trial, Atkinson appeared and asked the court for permission to withdraw. He told the court he had had “sparse and uncooperative communication” with Jones-Blair and that he didn’t believe he had actually been authorized to act on Jones-Blair’s behalf. He further noted that he had sent a letter to Jones-Blair explaining the need to defend the counterclaim and that “up until yesterday afternoon, they didn’t return my phone calls, and I’ve had no further communication with them, and I would ask for leave to withdraw.” The court summarily relieved Atkinson from representation, based on Atkinson’s claim that Jones-Blair was uncooperative. Atkinson left the courtroom and a nonjury trial proceeded on Hammett’s counterclaim. At the close of the hearing, Hammett was awarded $36,191.99 in damages, plus attorney fees. Judgment was entered of record on January 28, 1993.

Jones-Blair did not learn of the January 28 judgment until it received a letter from Hammett’s attorney dated May 14, 1993. At Jones-Blair’s request, Atkinson filed a motion to set aside the judgment. The motion recited that Jones-Blair believed the only issue to be tried on January 27 was its original action. The motion was denied on August 6, 1993. Over the next few weeks, Jones-Blair obtained new counsel and filed two motions: a motion for extension of time to file an appeal and a motion to set aside the judgment. In the motion to set aside, Jones-Blair asked for a new trial on the ground that Atkinson’s withdrawal from the case violated ARCP Rule 64(b). At a hearing on the motions, Atkinson candidly testified that he took no steps to contact Jones-Blair between December 3, 1992, and January 27, 1993 (despite his earlier implication to the court that he had tried to contact Jones-Blair by phone), that he did not move for a continuance, did not stay for the trial, did not notify Jones-Blair that he had withdrawn, and did not send Jones-Blair a copy of the judgment. He further said that, although he remembered typing the letter of December 3, he had no specific recollection of mailing it. The trial judge denied the motion to set aside and made the following pertinent findings, which we summarize below:

Although there was “some question” whether Jones-Blair received the letter dated December 3, 1992, Jones-Blair was aware of the pending counterclaim.
There were no communications between Jones-Blair and Atkinson other than the letters of October 22, 1992, November 10, 1992, and the letter of December 3, 1992, “which Jones-Blair did not receive.”
Considering Jones-Blair’s November 10 letter and no response to the December 3 letter, Atkinson was well within his rights to think Jones-Blair did not want him to defend them at trial.
Jones-Blair was negligent in failing to show up for trial and this negligence continued until it became aware of the judgment and took some action to set it aside.
Considering the November 10, 1992 letter and Atkinson’s December 3, 1992 letter, Atkinson was not required to take any more reasonable steps to comply with Rule 64.

Jones-Blair appeals from that order.

We begin our analysis of this case with a discussion of ARCP Rule 64(b). It provides as follows:

A lawyer may not withdraw from any proceeding or from representation of any party to a proceeding without permission of the court in which the proceeding is pending. Permission to withdraw may be granted for good cause shown if counsel seeking permission presents a motion therefor to the court showing he (1) has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel; (2) has delivered or stands ready to tender to the client all papers and property to which the client is entitled; and (3) has refunded any unearned fee or part of a fee paid in advance, or stands ready to tender such a refund upon being permitted to withdraw.

There is no question that Rule 64 was not complied with in this case. The appellee concedes as much. However, we detect a misunderstanding of the rule’s purpose, and we take this opportunity to address it. It is crucial for a trial court to understand that Rule 64(b) is aimed at protecting the client’s interests. The trial court must look at the proposed withdrawal from the point of view of the client, not the attorney. The trial judge’s findings of fact evidence a misunderstanding of this concept. The findings focus on whether Atkinson committed any wrongdoing. The focus should have been whether Jones-Blair’s interests were protected. Further, the trial court must play an active role in determining whether the requirements of the rule have been met. A bare assertion by an attorney that a client is uncooperative does not justify granting a motion to withdraw. Even if a client is uncooperative or hard to communicate with, neither the attorney nor the court is relieved from insuring that Rule 64 is followed.

We turn now to the question of whether the violation of Rule 64(b) entitles Jones-Blair to a new trial. Jones-Blair contends that the judgment against it should have been set aside pursuant to ARCP Rule 60(c)(1). That rule allows relief in cases where grounds for a new trial are not discovered for more than ninety days after entry of judgment. The ground for new trial asserted in this case is contained in ARCP Rule 59(a)(1): “any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial.” We have no hesitancy in holding that Atkinson’s withdrawal in this case prevented Jones-Blair from having a fair trial. However, we have said that a party is not entitled to relief under Rule 60(c) if he has not been diligent in protecting his own interests. Diebold v. Myers General Agency, Inc., 292 Ark. 463, 731 S.W.2d 183 (1987). When the court of appeals decided this case, it concluded that Jones-Blair’s lack of diligence precluded a new trial:

The appellant had been aware of the pending counterclaim against it since 1989 and was aware of the trial date as early as Mr. Atkinson’s letter of October 22, 1992. The appellant responded to the October 22 letter but made no further attempts to contact its attorney or inquire about the status of the litigation. The appellant did not appear for trial nor did it inquire regarding the results of the trial.

51 Ark. App. 112 at 118; 911 S.W.2d 263 at 266.

In Diebold v. Myers General Agency, supra, we held that the appellant could not obtain Rule 60 relief because she had not been diligent in protecting her own interests. Mrs. Diebold signed a promissory note to repay money her son Lloyd had stolen. When she defaulted on the note, the holder brought suit against her. She turned the complaint and summons over to Lloyd and Lloyd hired an attorney named Hickman. After that, neither she nor Lloyd had anything more to do with the case. On the day trial was scheduled, Hickman was allowed to withdraw and judgment was entered against Mrs. Diebold. She tried to set the judgment aside pursuant to Rule 60(c). We said that Mrs. Diebold was not entided to a new trial because her failure to keep tabs on her case was in large measure responsible for the entry of judgment against her.

The Diebold case exemplifies the type of conduct which will prevent a litigant from obtaining relief under Rules 60 and 64. Mrs. Diebold did not take a single step to protect her own interests, other than turning the suit papers over to her son, a non-attorney and a person she knew to be irresponsible. She made not one inquiry regarding her case and had no communications whatsoever with her attorney. By contrast, Jones-Blair hired an attorney and kept in contact with him, although somewhat intermittently. When notified of the trial date via Atkinson’s October 22 letter, Jones-Blair responded in a timely fashion, saying it had written off Hammett’s debt. Upon receipt of that response, Atkinson realized that Jones-Blair did not appreciate the fact that a counterclaim was still pending, so he wrote the December 3 letter. There is no finding from the trial court that Jones-Blair received the December 3 letter; in fact, the court’s findings indicate that Jones-Blair’s receipt of the letter was doubtful. Thus, after November 10, Jones-Blair was probably laboring under the false impression that no trial would occur. What we have on Jones-Blair’s part is not a callous lack of diligence, but more in the nature of a misunderstanding. This is the crucial difference between this case and Diebold. Jones-Blair hired an attorney to appear at trial; it responded when notified of the trial setting; it might well have thought that there would be no trial, since it had dropped its own claim; and it had no knowledge that its attorney had withdrawn. Jones-Blair’s failure to follow up on its case, while ill-advised in retrospect, cannot be equated with the type of apathetic behavior that was exhibited in Diebold.

We are mindful that a trial court’s findings of fact should not be set aside unless clearly erroneous. ARCP Rule 52(a). Actually, we agree with the factual determinations made by the court. However, the court erred in concluding that Jones-Blair was negligent to the extent that Rule 60 relief should be denied. We therefore reverse and remand the case for a new trial.

Reversed and remanded.


text:
    Rochelle WEAVER v. STATE of Arkansas
    CR 96-472
    928 S.W.2d 798
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      Everett, Shemin, Mars & Stills, by: John C. Everett, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   BRADLEY D. Jesson.

The appellant, Rochelle Weaver, was convicted of drinking in public, Ark. Code Ann. § 5-71-212(c) (Repl. 1993), sentenced to thirty days in jail, and ordered to pay a $100.00 fine. The jail sentence and all but twenty-five dollars of the fine were suspended for one year. Appellant essentially claims that the trial court should have dismissed her case because she was not drinking in a “public place” within the meaning of the drinking-in-public statute. We agree with her argument and reverse and dismiss. In so holding, it is unnecessary for us to reach appellant’s remaining argument that the statute is unconstitutionally vague.

The relevant facts are not in dispute. On September 30, 1995, at approximately 12:30 a.m., Officer Randy Nichols responded to a complaint of a loud private party at a residence on Sam Street in Johnson, Arkansas. Upon his arrival, he observed ten to twelve people in the front yard of a private residence. Two males and two females, including the appellant, Rochelle Weaver, walked to the back of a small pickup truck that was parked in the side yard of the residence. Appellant, who was over the age of twenty-one, was seated on the tailgate drinking a bottle of Bud Light beer. She was not intoxicated. Officer Nichols approached appellant and arrested her for drinking in public. Appellant was convicted of the offense in municipal court and appealed to circuit court. Following a bench trial, appellant was again found guilty as charged. This appeal followed.

Appellant first alleges that the trial court should have dismissed the drinking-in-public charge because she was not drinking in a “public place” within the meaning of the statute. The drinking-in-public statute, Ark. Code Ann. § 5-71-212(c) (Repl. 1993), reads as follows:

A person commits the offense of drinking in public if that person consumes any alcoholic beverages in any public place, on any highway, or street, or upon any passenger coach, streetcar, or in or upon any vehicle commonly used for the transportation of passengers, or in or about any depot, platform, waiting station or room, or other public place other than a place of business licensed to sell alcoholic beverages for consumption on the premises.

(Emphasis added.)

While we have not had occasion to interpret the term “public place” as used in the above statute, we have had at least one opportunity to interpret the term as used in the old public-intoxication statute, then Ark. Stat. Ann. § 48-943 (Repl. 1964). In Berry v. City of Springdale, 238 Ark. 328, 381 S.W.2d 745 (1964), we held that Berry, who was seated in a vehicle parked on a highway right-of-way approximately ten to twenty-five feet from the paved surface of the road, was in a “public place.” In so holding, we referred to the Webster’s Dictionary definition of “public” as “a place accessible or visible to all members of the community.” Id. at 330. (Emphasis added.)

While the Berry case defined “public place” in terms of accessibility and visibility, that case was decided before the Criminal Code became effective on January 1, 1976. The applicable chapter in the Code defines the term “public place” as “a publicly or privately owned place to which the public or substantial numbers of people have access.” Ark. Code Ann. § 5-71-101(6) (Repl. 1993) (Emphasis added.) In short, the Code definition speaks only in terms of accessibility, not visibility. The question thus becomes whether the public or substantial numbers of people had access to the place where appellant was drinking her beer, not whether appellant was drinking in an area that was visible to the public.

Many courts have recognized that a private residence is not a public place within the purview of statutes prohibiting intoxication in a public place. 45 Am. Jur. 2d Intoxicating Liquors § 36 (1969 and Cum. Supp. 1996). See alsoRoyster v. State, 643 So.2d 61 (Fla.App. 1 Dist. 1994) (front porch of appellant’s residence is not a public place); Moore v. State, 634 N.E.2d 825 (Ind.App. 4 Dist. 1994)(back yard of a private residence is not a public place); Haynes v. State, 563 N.E.2d 159 (Ind.App. 2 Dist. 1990)(area “off” a porch of a private residence is not a public area); Commander v. State, 748 S.W.2d 270 (Tex.App.-Houston [14th Dist.] 1988)(neither a private residence nor its yard or driveway is a public place). At least one commentator has observed that private homes have not ordinarily been regarded as public “even though in some instances a number of persons are gathered there for one reason or another.” C.L. Feinstock, Annotation, Location of Offense as “Public” Within Requirement of Enactments Against Drunkenness, 8 A.L.R.3d 930 (1966 and Supp. 1996).

In this case, it was undisputed that appellant was attending a private party at a privately owned residence. She was drinking a beer on the tailgate of a pickup truck that was parked on the side yard of this residence. Because we cannot agree that this was a place to which the public or substantial numbers of people had access, we hold that the trial court erred in failing to dismiss appellant’s case.

Reversed and dismissed.


author: Robert H. Dudley, Justice.

text:
    Henry Lee CODY v. STATE of Arkansas
    CR 96-513
    929 S.W.2d 159
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      Bart E. Ziegehhorn, for appellant.

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

Henry Cody was convicted on three counts of theft of property. The statute in effect at the time Cody committed the thefts provided that theft of property was a Class C felony if the value of the property were $200 or more. Ark. Code Ann. § 5-36-103 (Repl. 1993). By the time of trial, the statute had been amended to provide that it was a Class C felony if the value of the property were $500 or more. Ark. Code Ann. § 5-36-103(b)(2)(A) (Supp. 1995). Cody contended at trial, as he does on appeal, that the amended statute should be applied. The argument is without merit.

Before the enactment of the Arkansas Criminal Code of 1975, we held that when the General Assembly amended an act to reduce the penalty after a crime was committed, but before sentencing, the sentence was to be fixed in accordance with the amended act. Clark v. State, 246 Ark. 876, 440 S.W.2d 205 (1969). However, in State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993), we held that the criminal code sentencing provisions had supplanted our case law. Id. at 430, 863 S.W.2d at 289. Since the enactment of the criminal code, we have consistently held that sentencing is controlled by statute, Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981), and that sentencing shall be in accordance with the statute in effect at the time of the commission of the offense. Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983). Accordingly, the trial court correctly ruled that the governing statute was the one in effect at the time Cody committed the crimes.

Affirmed.

Glaze, J., concurs.


text:
    Thomas F. STORY v. STATE of Arkansas
    95-504
    929 S.W.2d 709
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996
    [Petition for rehearing denied November 11, 1996.]

      Appellant, Pro Se.

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

Thomas Story was arrested for aggravated assault and, after arraignment, was freed on $5,000 cash bail. A jury found him guilty, and the trial court sentenced him to one year of imprisonment and amerced a fine of $5,000. After his conviction, and while his case was on appeal, he was allowed to remain free on the same cash bond. The court of appeals affirmed the judgment of conviction in a nonpublished opinion. Story v. State, CACR 87-137 (Ark. App. Jan 13, 1988). Story served his sentence, but did not pay the fine. The county retained the $5,000 cash posted as bond and treated it as payment of the fine. Story, without the assistance of counsel, filed this suit for return of the money. His complaint alleged that “as surety, I deposited the sum of $7,500 as cash for the said defendant” and that bond was later reduced to $5,000. He alleged that the “proof of deposit issued to me is annexed hereto,” but it is not in the record. He sought an order of the circuit court directing the county treasurer to refund the $5,000.

After some procedural confusion below, we issued a per curiam opinion on September 19, 1994, remanding the case to the trial court to provide a copy of the order disposing of Story’s motion for return of bail or, if the trial court had not disposed of the motion, to act on it forthwith. Story v. State, 318 Ark. 47, 883 S.W.2d 450 (1994). On October 11, 1994, the trial court ruled that all of Story’s postconviction motions, except return of bond money, had been decided. The trial court then asked if the facts were to be stipulated on the motion to refund the bond money. Story responded that the $5,000 was posted by a bondsman. The trial court countered that the records reflected that Story personally posted the bond. Story contended by argument, and not by sworn testimony, that a bondsman had posted the bond; that he repaid the bondsman; and that the bondsman assigned him the right to receive the money. However, there was no formal stipulation of the latter contention. The deputy prosecutor said nothing.

Story later filed his brief and, with attached affidavits, showed that he was arrested and incarcerated on August 13, 1986; that he called Theresa Harrigan and asked her to post the $7,500 required for cash bail; that she deposited $7,500 cash on August 14, 1986; that he gave Harrigan a suretyship promise of repayment; that the trial court reduced the amount of bail to $5,000; that he reduced his suretyship payment to $5,000; that, after his release, he repaid Harrigan the $5,000; and that, in return, she assigned to him all of her rights to the money. Story alleged that he filed the complaint for return of the money on the basis that he had provided “indemnification compensation” as “surety” and that the money deposited belonged to the surety and could not be used to pay the defendant’s obligations. It is not clear from the record whether the trial court gave consideration to the facts stated in the affidavits, but it makes no difference to the outcome of the case.

On February 8, 1995, the trial court entered an order denying Story’s petition. The order stated, in part, that Story had not paid the $5,000 fine and that, under Ark. Code Ann. § 16-84-115(3) (Supp. 1995), the cash bail “deposited by the defendant” could be applied to satisfy the $5,000 fine. It is from this order that appellant appeals. We affirm the trial court’s ruling.

Section 16-84-115 of the Arkansas Code Annotated (Supp. 1995) provides that when a defendant is admitted to bail in a specified sum, he may deposit the sum with the proper official in the county where the trial is to be held, take the receipt to the officer whose custody he is in, and be discharged. The Section further provides:

(2) Where money is deposited, the proper city or county official shall hold and pay the money according to the orders of the court having jurisdiction to try the offense, and he and his sureties shall be liable for the money on their official bond.
(3) Upon judgment being rendered against a defendant for fine and costs, the court rendering judgment may order any money deposited agreeably to this section to be applied to the payment thereof. This subdivision shall not apply to a bail bond of a bail bondsman.

Ark. Code Ann. § 16-84-115(2) & (3) (Supp. 1995).

The trial court was correct in ruling that the language of the above statute authorized it to order the money deposited by Story to be applied to the fine. Story contends the ruling was in error and bases his arguments on Cessna Finance Corp. v. Skelton, 287 Ark. 378, 700 S.W.2d 44 (1985), and the last sentence of subpart (3), quoted above, relating to bail bondsmen. Skelton involved a finance company that sought to levy on a cash bond posted by a bondsman. The finance company sought to collect a general debt owed it by the defendant. Under those facts, we held that the bondsman owned the money and delivered it to the county with the expectation that it would be returned to him, less the required deductions, upon the defendant fulfilling his appearance obligation. The case is not applicable to the facts of the case at bar because here the trial court found the bond was “deposited by the defendant,” and, even under Story’s alleged facts, he owned the money at the time of forfeiture.

Similarly, the last sentence of Ark. Code Ann. § 16-84-115(3) is not applicable to the facts of this case for any of three reasons. First, the last sentence was added to subsection (3) in 1989. See 1989 Ark. Acts 417, § 5. Prior to Act 417 of 1989, Ark. Code Ann. § 16-84-115(3) was codified at Ark. Code Ann. § 16-84-113(c) (1987) and did not contain the provision that the subsection did not apply to bail bondsmen. Second, the trial court found that the cash bail was “deposited by the defendant”; thus, no bondsman was involved, and, under the statute, the trial court could order that Story’s money should be applied to pay the fine. Story’s brief contends that he did not deposit the cash bond, but there was substantial evidence for the trial court’s finding. The court records showed that Story deposited the money, and Story failed to attach an alleged “proof-of-deposit” showing Theresa Harrigan deposited the money. The alleged documents that Story refers to on appeal were not part of the record before the trial court at the hearing: they were supplied later as affidavits attached to his trial court brief. Third, even if the trial court might have considered the documents, they would have shown that Theresa Harrigan initially posted the bond, but Story refunded $5,000 to her and, in 1988, took an assignment of all of her rights to the money.

An assignment “ordinarily passes to the assignee all of the rights, title, or interest of the assignor in or to the property or property rights that are comprehended by the terms used, or are within the intention or understanding of the parties, as ascertained in accordance with the general rules of construction.” Turner v. Rust, 228 Ark. 528, 535, 309 S.W.2d 731, 735 (1955) (quoting 6 C.J.S. Assignments § 84 (1937)). Harrigan assigned her rights in the money to Story in 1988, after his conviction was affirmed. Thus, Story became the owner of the money in 1988. Seven years later, in 1995, when the order now on appeal was entered, Story still had not paid his fine. Thus, even under Story’s version of the facts, the trial court had the authority to order the money paid to satisfy the fine under Ark. Code Ann. § 16-84-115(3).

Affirmed.


author: DAVID Newbern, Justice. Robert L. Brown, Justice,

text:
    Robert Lynn GORDON and John Michael Priest v. STATE of Arkansas
    CR 96-287
    931 S.W.2d 91
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      Adams & Evans, by: Donald J. Adams, for appellant Gordon.

      Gardner & Putman, by: John Putman, for appellant Priest.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   DAVID Newbern, Justice.

Robert Lynn Gordon and John Michael Priest were tried jointly for attempted capital murder and manufacture of a controlled substance. Mr. Gordon was convicted of both offenses and sentenced to 35 years’ imprisonment and a $10,000 fine. Mr. Priest was convicted of manufacture of a controlled substance and was given a four-year suspended sentence. Both have appealed, and their appeals have been consolidated. We affirm Mr. Gordon’s conviction as we reject his sole point of appeal having to do with alleged error resulting from improper limitation of cross-examination of a State’s witness. We reverse and dismiss the conviction of Mr. Priest because we concur in his contention that the evidence against him given by an accomplice was not corroborated.

On Thursday, August 18, 1994, the Marion County Sheriff’s office received a report concerning the discovery of a large marijuana plot. Investigator Carr was the first to respond to the call. Upon entering the marijuana field, Mr. Carr noticed a strand of monofilament fine, a type of fishing fine, running to a piece of pipe. Suspecting a trap-gun, he attempted to relay his discovery to other approaching officers. While attempting to radio the other officers, he set-off a second, unseen trap-gun which was loaded with buckshot. The resulting blast struck Mr. Carr’s leg. Although severely wounded, he managed to crawl out of the field. He was found by other officers and rushed to the hospital. The officers recovered 402 marijuana plants and two trap guns constructed of galvanized pipe and rat traps.

The State’s primary witness was Kenneth Godat, an accomplice. According to Mr. Godat, the marijuana plot belonged to Mr. Gordon and Mr. Priest. Mr. Godat testified that he heard the two men discussing the necessity of keeping law enforcement officials out of the plot, and that he saw the components for the trap-guns on a nearby picnic table immediately after the discussion. He claimed that he saw a trap-gun, identical to the ones found in the marijuana plot, at the cabin shared by the two men. Mr. Godat also stated that he transported the two men to the plot on the day the trap-guns were installed. The other evidence produced by the State consisted of testimony from individuals who stated they knew the marijuana patch belonged to Mr. Gordon, that he talked of protecting it with booby-traps, and that he had a partner, although the partner was not named.

Robert Lynn Gordon Scope of cross-examination

Bill Beach, one of the investigating officers, testified he took fingerprints from a number of the suspects and submitted them to the State Crime Laboratory for comparison to prints found on the trap-guns. When questioned about the result, he stated the test was inconclusive. Officer Beach testified a laboratory technician told him “That he had found one, partial latent print on one of the [trap-guns] and that... as a result of his comparison to the known prints that were submitted, the print was not suitable to identify any potential suspect, there were not enough points of identification to identify one person.” On cross-examination, Mr. Gordon’s counsel began questioning Officer Beach about a conversation Mr. Beach had with the fingerprint examiner, Mr. Turbyfill, concerning which suspect the fingerprints most closely matched. The State’s objection was sustained.

Mr. Gordon’s counsel asked to make a proffer consisting of his allegation that Officer Beach would testify that Mr. Turbyfill said that he found five points on the latent print which matched the fingerprint of Brad McLean and that Mr. Turbyfill had stated the investigator should take a “hard look” at Mr. McLean as a suspect. The Trial Court stated that, if a statement by Mr. Turbyfill were admissible, Mr. Turbyfill would be the proper witness but he doubted the testimony would be admissible “under any stretch of the rule of evidence.” Obviously, the Trial Court considered the testimony of Mr. Beach about what Mr. Turbyfill had told him to be irrelevant and, at best, subject to a hearsay objection on the part of the State. We note that in Davis v. State, 319 Ark. 892 S.W.2d 472 (1995), we held that a police officer’s testimony about a scientific test he did not conduct was not admissible.

On appeal, Mr. Gordon contends that Officer Beach’s statement concerning the inconclusive nature of the test was misleading. He submits that he should have been allowed to elicit testimony from Officer Beach that, even though inconclusive, the fingerprint test implicated one of the other suspects and not Mr. Gordon. Mr. Gordon contends the Trial Court erred by limiting his cross-examination of a State’s witness and such error amounted to a denial of his Sixth Amendment right of confrontation.

The right of confrontation provides two types of protection for defendants in criminal cases: the right to face those who testify against them and the opportunity to conduct effective cross-examination. Gunter v. State, 313 Ark. 504, 857 S.W.2d 156 (1993). The right to cross-examine is, however, not unlimited, and a trial court has wide latitude to impose reasonable limits on cross-examination based upon concerns about confusion of issues or interrogation that is only marginally relevant. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994); Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990). We will not disturb the discretion of the trial court upon review in the absence of a showing of abuse. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994).

To determine whether the restrictions placed on the right to cross-examine a witness rise to the level of a constitutional deprivation, we look to the record as a whole to determine if the restrictions imposed created a substantial danger of prejudice to appellant. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992); Bowden v. State, supra. Prejudice is not presumed and we will not reverse absent a showing of prejudice. King v. State, 322 Ark. 51, 907 S.W.2d 127 (1995); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

In his argument, Mr. Gordon cites three cases in support of his point that his right of confrontation was erroneously curtailed. The cases are U.S. v. Campbell, 845 F.2d 782 (8th Cir.1988), U.S. v. Ferguson, 776 F.2d 217 (8th Cir. (1985), and Bowden v. State, supra. In each of those cases convictions were affirmed, and each of the opinions emphasizes the wide discretion a trial court has in limiting cross-examination. The opinion in the Ferguson case makes the point that “A violation of the confrontation clause occurs only where the limitation on the cross-examination could reasonably be expected to have a substantial effect on the jury’s decision.”

Mr. Gordon has failed to show either an abuse of the Trial Court’s discretion or any prejudice resulting from the restriction. He was allowed to question the State’s witnesses concerning the existence of other suspects. Mr. Gordon’s former spouse testified that Brad McLean had been involved in growing marijuana with Mr. Gordon. Evidence that the fingerprint somewhat matched that of Mr. McLean would have added litde to Mr. Gordon’s attempt to show that others were suspects and might have been involved in the growing of the marijuana.

We cannot say that, absent the cross-examination Mr. Gordon’s counsel wished to conduct, any implication was left with the jury that it was Mr. Gordon’s fingerprint found on the trap-gun. Nor has Mr. Gordon given us any citation to any authority which would make an apparendy hearsay statement, of marginal, if any, relevance, admissible because the prosecution had “opened the door.” In Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994), we rejected a similar argument where the State had offered evidence that a murder victim was reputed to have been a peaceful person and the defendant wanted to offer evidence of specific acts of violence committed by the victim. We upheld the Trial Court’s refusal to allow the evidence and said, “The fact that the State may have first ‘opened the door’ regarding the victim’s character does not overcome the problem of relevancy under these circumstances.”

The research effort displayed in the concurring opinion will undoubtedly be helpful in future cases in which there is a “fire” to be fought with a “fire.” In the circumstance presented here, however, the door opened by Officer Beach’s testimony resulted in no prejudice whatever to Mr. Gordon.

We affirm the judgment as to Mr. Gordon.

John Michael Priest Sufficiency of the evidence

Mr. Priest contends the Trial Court should have granted his motion for directed verdict because the State failed to corroborate accomplice testimony as to his involvement in the manufacture of a controlled substance in violation of Ark. Code Ann. § 5-64-401 (b) (Supp. 1995).

Arkansas Code Ann. § 16-89-111 (e)(1) (1987) provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

The corroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it. Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996); Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992); Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991). The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, other evidence independently establishes the crime and tends to connect the accused with its commission. Meeks v. State, 317 Ark. 411, 878 S.W.2d 403 (1994); Daniels v. State, supra.

The corroborative evidence must be substantial evidence, which is stronger evidence than that which merely raises a suspicion of guilt. Hogue v. State, supra. Circumstantial evidence qualifies as corroborating evidence, but it, too, must be substantial. Id. But corroboration need not be so substantial in and of itself as to sustain a conviction. Id. See Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983).

The State contends it produced sufficient corroborating evidence through the testimony of Doug Sauers. Mr. Sauers testified he had a conversation with Mr. Gordon after Investigator Carr was wounded. According to Mr. Sauers, Mr. Gordon told him that he, Gordon, would have had plenty of marijuana if the victim had not messed things up. Mr. Sauers stated that Mr. Gordon talked about the patch as “ours” indicating that he had a partner. Mr. Sauers unequivocally denied that Mr. Gordon ever mentioned the name of his partner.

Other witnesses testified they thought Mr. Gordon had a partner, but no name was mentioned. Mark Fisk testified he went to Mr. Priest’s cabin several times and observed people smoking marijuana. He also testified he heard Mr. Priest and Mr. Gordon say that Investigator Carr got what he deserved. Mr. Fisk said he did not know anything about who was growing marijuana.

The evidence produced by the State, other than the testimony of the accomplice, does no more than place Mr. Priest in a location where marijuana was used and the crime against Mr. Carr was discussed. That is not sufficient to satisfy the requirement of§ 16-89-lll(e)(l).

The judgment against Mr. Priest is reversed and the case is dismissed.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I disagree with the majority that evidence of Brad McLean’s fingerprint on one of the trap-guns would have added little to Gordon’s defense. The majority bases this conclusion on the fact that there was testimony from others that McLean was involved in marijuana growing. But that proof hardly equates to evidence that McLean’s fingerprints were on one of the deadly devices responsible for wounding Officer. Carr. Gordon’s attempted defense was that someone else — Brad McLean in particular — did it. Thus, any curtailment of Gordon’s ability to point to McLean as the culprit was crucial.

As the majority points out, the prosecutor opened the door to testimony about other suspects with this colloquy with Officer Beach on direct examination:

PROSECUTOR: The technician, you were saying, explained to you what?
BEACH: That he had found one, partial latent print on one of the devices and that ...
PROSECUTOR: On one of the booby trap devices?
BEACH: Yes sir, and that as a result of his comparison to the known prints that were submitted, the print was not suitable to identify any potential suspect, there were not enough points of identification to identify any one person.
PROSECUTOR: Okay, so what he found was a partial print on one of those devices but it didn’t have enough of a print to make up, sufficient points to make a comparison with the known prints you were submitting?
BEACH: That’s correct, there were not enough points to identify any one particular suspect.

This testimony by Officer Beach, which was admittedly hearsay of what the fingerprint expert told him, left the distinct impression with the jury that that expert (Ralph Turbyfill) had no suspect in mind.

On cross-examination, Gordon’s counsel tried to clarify through Officer Beach that Turbyffll had in fact matched five points on the latent fingerprints taken from the trap-gun with Brad McLean’s fingerprints. The trial court refused to allow this questioning on grounds that Gordon’s counsel had not objected to the first hearsay statement by Officer Beach and, as a second reason, that what counsel was now attempting to elicit was hearsay of his own.

I further take issue with the conclusion by the majority that there is no authority allowing the defense to do what it sought to do in this case. This court has recognized the principle that once a party has opened the door with inadmissible evidence, the opposing party can do likewise:

Since Walder, (Walder v. United States, 347 U.S. 62 (1954)), we have recognized the propriety of “fighting fire with fire” when one of the parties opens the door with an untruthful statement, introduces inadmissible evidence, or makes an improper closing argument.

Larimore v. State, 317 Ark. 111, 121, 877 S.W.2d 570, 574 (1994); see also Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). That is what we have here. Officer Beach first alluded to statements by Turbyfill that were hearsay, and defense counsel, as a result, tried to correct the misleading statements by eliciting additional hearsay from the police officer. Under the authority of Walder v. United States and Larimore v. State, that is permissible.

The treatise, Jones on Evidence, confirms the principle:

Evidence that is irrelevant or otherwise inadmissible, if offered by a party in the first instance, may become properly admissible to rebut or explain evidence offered by another party.

2 Clifford S. Fishman, Jones on Evidence Civil and Criminal, § 11:34, at 352 (7th Ed. 1994). This is known as the rule of verbal completeness. Id. at § 11:35; p. 355. The treatise goes on to state that while one state (Ohio) would not permit this,

[t]he better view ... is that the “rule of completeness” permits introduction of otherwise inadmissible evidence for the limited purposes of explaining or putting other, already admitted evidence, into context, or avoiding misleading the jury.

Id. at § 11:39, p. 370. (Emphasis added.)

An analogous rule is the rule of curative admissibility which is a discretionary rule of evidence based on principles of fairness. 2 Clifford S. Fishman, Jones on Evidence Civil and Criminal, § 11:41, at 374 (7th Ed. 1994). The rule is described as follows:

If one party has gotten away with a breach of the rules, sometimes the only practical way to undo the unfair advantage (other than a mistrial) is to allow the other party a compensatory breach. Thus, if one party has been allowed to present irrelevant or otherwise inadmissible evidence, the judge should allow the opposing party to present similar evidence if such is necessary to offset the unfair advantage or prejudicial effect of the earlier improper evidence.

Id.

Finally, I question whether Gordon’s sole recourse to combat the testimony of Officer Beach was calling Turbyfill as his own witness. Our case law holds that Gordon had the right to fight fire with fire and correct the missimpression left with the jury. See Larimore v. State, supra; Porter v. State, supra. This rationale should apply irrespective of whether the party subsequendy calls the de-clarant as a witness.

The issue that places me in the posture of concurring is whether a party must object to the initial hearsay. The Iowa Supreme Court says this is not necessary:

[The] doctrine [curative admissibility] provides that when one party introduces inadmissible evidence, with or without objection, the trial court may allow the adverse party to offer otherwise inadmissible evidence on the same subject if it is responsive to the evidence in question.

Lala v. Peoples Bank & Trust Co. of Cedar Rapids, 420 N.W.2d 804, 807-808 (Iowa 1988). Nevertheless, this court has not addressed that issue, and I cannot say that the trial court abused its discretion in requiring an initial objection. For that reason, I concur in the result.


author: David Newbern, Justice.

text:
    EQUITY FIRE & CASUALTY INSURANCE COMPANY v. Mary Odean COLEMAN and Rudolph Coleman
    95-761
    928 S.W.2d 796
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      Hardin, Jesson, Damon & Terry, by: Robert M. Honea, for appellant.

      Bethel, Callaway, Robertson, Beasley & Cowan, by: John R. Cowan, for appellees.
   David Newbern, Justice.

Mary Odean Coleman was involved in an automobile collision with a car driven by Richard Feagin. The car Mr. Feagin was driving was owned by Velva Crase, an Oklahoma resident, who had loaned it to her son, Billy Crase, who resided with Mr. Feagin in Sebastian County. The accident occurred in Sebastian County. Mrs. Coleman and her husband, Rudolph Coleman, sued Mr. Feagin and obtained a default judgment for $17,500. The Colemans then sued the appellant, Equity Fire & Casualty Insurance Company (Equity), alleging that a liability insurance policy issued by that Company covered the vehicle being driven by Mr. Feagin.

The Colemans’ direct action against Equity was brought purportedly in accordance with Ark. Code Ann. § 23-89-101 (Repl. 1992). Such an action is allowed if, in the words of the statute, “the judgment remains unsatisfied at the expiration of thirty (30) days from the serving of notice of entry of judgment upon the attorney for the insured or upon the insured or upon the insurer.”

The Colemans were awarded a judgment against Equity in the amount of their earlier judgment against Mr. Feagin plus a penalty, attorney’s fee, and interest. Equity has raised a number of points in its appeal, but we need only consider one of them. Because venue was improperly laid we must reverse and dismiss the case.

The action of the Colemans against Equity was brought in Crawford County where the Colemans reside. Their complaint alleged venue was properly laid in Crawford County because the action was for personal injury and thus could be brought in the county of the plaintiffs’ residence. Ark. Code Ann. § 16-60-112 (1987).

Equity answered the complaint, objected to the Crawford County venue, and moved to dismiss. Attached to the motion to dismiss was an affidavit of an Equity adjuster to the effect that, at the time of the accident Equity had not qualified to do business in Arkansas, but by the time the complaint against it was filed, it had so qualified and had appointed the Arkansas Insurance Commissioner as its agent to receive process in Pulaski County.

Section 23-89-101 provides:

(a) Any policy of insurance issued or delivered in this state indemnifying any person against any actual money loss sustained by the person for damages inflicted upon the property or person of another shall contain a provision that the injured person, or his or her personal representative, shall be subrogated to the right of the insured named in the policy.
(b) The policy shall also contain a provision that the injured person, or his or her personal representative, whether the provision is actually inserted in the policy or not, may maintain a direct cause of action against the insurer issuing the policy for the amount of the judgment rendered against the insured, not exceeding the amount of the policy, provided the judgment remains unsatisfied at the expiration of thirty (30) days from the serving of notice of entry of judgment upon the attorney for the insured or upon the insured or upon the insurer.

There is strong doubt § 23-89-101 applies in this case in view of evidence that the policy of insurance in question was neither issued nor delivered in Arkansas. But even if it were applicable, it obviously is a subrogation statute, the purpose of which is to confer upon an injured person the rights of the named insured against the insurance company. The action permitted by the statute is thus contractual in nature and not for personal injury. The personal injury action ended with a judgment in favor of the Colemans. The statute, if it applies, places them in the shoes of the insured suing the insurer alleging coverage under the insurance agreement.

We have held the statute permitting a contract action against a nonresident foreign corporation to be brought in the county of the plaintiff’s residence, Ark. Code Ann. § 16-60-109 (1987), to be unconstitutional when the foreign corporation is one that has qualified to do business in this State. Philco-Ford v. Holland, 261 Ark. 404, 548 S.W.2d 828 (1977). There is a special venue statute, Ark. Code Ann. § 23-79-204 (Repl. 1992), which governs an action for loss by an insured or beneficiary under an insurance policy. It provides the action is to be brought in the county in which the loss occurred or the county of the insured’s residence at the time of the loss. Crawford County is neither.

Remaining for consideration is our general or “catchall” venue provision found in Ark. Code Ann. § 16-60-116(a) (1987). It provides, “Every other action may be brought in any county in which the defendant, or one (1) of several defendants, resides or is summoned.” Equity neither resided in nor was summoned in Crawford County. The action should have been brought in Pulaski County after proper service upon Equity by service upon the Insurance Commissioner.

In response to Equity’s venue argument, the Colemans cite Szalay v. Handcock, 307 Ark. 232, 819 S.W.2d 684 (1991), and Reasor-Hill Corp. v. Harrison, 220 Ark. 521, 249 S.W.2d 994 (1952). The Szalay case has to do only with jurisdiction of a nonresident insurer under a long-arm statute and nothing to do with venue. The Reasor-Hill Corp. case is a landmark decision. The action in question was for injury to real property located in Missouri. The party defending was an Arkansas resident. According to the common law “local-action rule,” the claim was required to be presented in the jurisdiction in which the property lay. The defendant, however, could not be served in Missouri. By following the local-action rule, the claim would have been entirely frustrated. We declined to follow the local-action rule and permitted the action to be brought in Arkansas. That decision has no applicability to the facts now before us.

When venue is improperly laid, we reverse and dismiss. Junction City School Dist. v. Alphin, 313 Ark. 456, 855 S.W.2d 316 (1993).

Reversed and Dismissed.

JESSON, C.J., not participating.


author: David NEWBERN, Justice.

text:
    Leroy King McCOY v. STATE of Arkansas
    CR 96-514
    929 S.W.2d 712
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      Herbert T. Wright, PA., by: Herbert T. Wright, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   David NEWBERN, Justice.

Leroy King McCoy was convicted of delivery of a controlled substance. Ark. Code Ann. § 5-64-401 (a) (Supp. 1995). He was sentenced to forty years’ imprisonment and fined $5,000. He was sentenced to an additional ten years’ imprisonment in accordance with Ark. Code Ann. § 5-64-411(a)(1)-(2) (Supp. 1995). The sentences were ordered to be served consecutively.

Mr. McCoy was arrested after he approached an undercover police informant, who was wearing a body microphone, and asked him what he wanted. The informant indicated he wanted “a twenty,” meaning twenty dollars’ worth of drugs. He was told by Mr. McCoy to drop the money and drive around the block. The informant dropped twenty dollars on the ground and drove away. When he returned, Mr. McCoy indicated a styrofoam cup. The informant retrieved the cup, and it contained rock cocaine which was turned over to police officers who had monitored the transaction.

Mr. McCoy’s sole point on appeal is that the evidence was insufficient to convict him because there was no showing that he (1) possessed or controlled cocaine, (2) transferred cocaine, directly or through an agent, to the informant, or (3) received money or anything of value from the informant.

We decline to consider the argument because Mr. McCoy’s directed verdict motion was not specific. It mentioned none of the points now being raised. Counsel only stated there was insufficient evidence without specifying the manner in which it was insufficient or the element(s) of the offense alleged not to have been proven by the State. Arkansas R. Crim. P. 33.1. provides, in part:

... A motion for a directed verdict based on insufficiency of the evidence must specify the respect in which the evidence is deficient; a motion merely stating that the evidence is insufficient for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. . . .

We have so held in a number of cases including Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995), and Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994)(decision under prior Rule 36.21(b)).

Affirmed.


author: Tom Glaze, Justice.

text:
    Lee GOSTON v. STATE of Arkansas
    CR 96-440
    930 S.W.2d 332
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      Chris Tarver, for appellant.

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

On April 13, 1993, appellant Lee Goston was arrested (and bonded out the next day) for the aggravated robbery of One Bank in Little Rock which occurred on March 29, 1993. On July 14, 1993, Goston requested a state mental health evaluation, which was granted on July 20, 1993. Goston had five other criminal cases pending against him, and he asked that a full mental evaluation be done in all the cases.

On October 4, 1993, another hearing was held for the purpose of resetting a date for obtaining a report in this case, and the parties agreed upon December 27, 1993. The trial court noted that all pending cases would be continued to the same date. On January 14, 1994, the State Mental Health Services'filed its report in this case, finding Goston competent to stand trial, and that Goston did not lack the capacity to conform his conduct to the requirements of the law. In conformity with the earlier proceedings, the present case was continued further until the remainder of Goston’s evaluations were received by the court. The trial court actually held four hearings so as to check on the progress of the evaluation reports and to determine when a trial date could be set. On March 7, 1994, the trial court held such a hearing, but granted another evaluation at Goston’s request, and the court continued the case until April 25, 1994. At the April 25 hearing, it was determined one evaluation was still out in a separate pending case and both Goston and the prosecutor agreed this case could not go forward; the court granted another continuance until June 20, 1994. On June 20 and on August 1, 1994, Goston and the State again agreed to a continuance because an evaluation in another pending case remained outstanding. Finally, on October 31, 1994, all evaluations had been completed and filed, so the trial court set the present case for a jury trial to be held on May 16, 1995.

On May 16, 1995, Goston asked for a dismissal, claiming his speedy-trial rights had been violated. After the trial court denied his motion, Goston then moved for a continuance, stating that, during one of his other cases tried only four weeks earlier, he had caused a disturbance which had been witnessed by several of the veniremen who were prospective jurors in the present case. The trial court granted Goston’s continuance motion, agreeing he probably could not receive a fair trial, considering his earlier disruption, but, at the same time, it repeated its ruling that the speedy-trial period had been tolled. On June 26, 1995, the trial court set a new trial date for November 9, 1995.

Goston’s jury trial commenced on November 9 when, again, Goston moved that his case be dismissed for lack of a speedy trial. Once again, the trial court denied Goston’s motion, and subsequently Goston was convicted of aggravated robbery and theft of property. His only point on appeal is that his constitutional right to a speedy trial had been violated; therefore, he is entided to dismissal of the charges against him.

Goston, citing Ark. R. Crim. P. 28.1(c) and 28.2(a), argues these rules established that he was entided to have his charges dismissed because he was not brought to trial within twelve months from when he was arrested on April 13, 1993. He further argues that, once he established that he was not tried within the twelvemonth period, the burden shifts to the State to show that any delay was the result of Goston’s conduct or was otherwise justified. Collins v. State, 304 Ark. 587, 804 S.W.2d 680 (1991). Here, Goston’s trial date was held on November 9, 1995, or 940 days after his arrest, so Goston submits the State must show excludable periods authorized under Ark. R. Crim. P. 28.3 that would permissibly reduce the 940-day period to the twelve-month period required by law.

The excludable periods under Rule 28.3 relevant to the present case are as follows:

(a) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is competent to stand trial, hearings on pretrial motions, interlocutory appeals, and trial of other charges against the defendant. (Emphasis added.)
(c) The period of delay resulting from a continuance granted at the request of the defendant or his counsel. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance.
(h) Other periods of delay for good cause.

To establish whether any delays may be excluded from the speedy-trial period under Rule 28.3, we chronologically list the following significant events:

4-13-93: Goston arrested for aggravated robbery and theft of property.
7-20-93: Per Goston’s request, court orders competency evaluation for Goston for the present case and all other pending cases (five in all).
1-14-94: Competency evaluation for the present case filed with the court.
3-7-94: Hearing to determine whether trial may be scheduled. Court grants another mental evaluation at Gos-ton’s request. The case is continued until 4-25-94.
4-25-94: Hearing to schedule trial. The court determines that one mental evaluation for another pending case is still outstanding. Goston argues, and the court and prosecution agree, that the case cannot go forward until all competency evaluations are filed with the court. Continuance until 6-20-94.
6-20-94: Hearing to schedule trial. One mental evaluation still outstanding. The court, prosecution and Goston all agree case cannot go forward until all evaluations are in. Continuance until 8-1-94.
8-1-94: Hearing to schedule trial. One mental evaluation still outstanding. Continuance until 10-17-94.
10-31-94: Hearing to schedule trial. All mental evaluations have been received by the court. Trial date is set for 5-16-95.
5-16-95: Goston brings motion to dismiss for lack of speedy trial. Court denies motion. Court grants continuance at the request of Goston. Court rules speedy trial tolled.
6-26-95: Goston is represented by new counsel. Court reschedules trial date for 11-9-95, and determines speedy trial tolled until that date.
11-9-95: Jury trial. Goston brings motion to dismiss for lack of speedy trial. Motion denied. Goston tried and convicted.

First, we point out that Goston concedes the period between July 20, 1993 and January 14, 1994, or 178 days, is properly excluded from the speedy-trial period because the parties were awaiting the results of Goston’s mental examination to determine his competency to stand trial. However, citing Johnson v. State, 27 Ark. App. 217, 769 S.W.2d 37 (1989), he claims any further excludable time ended when his evaluation report was filed in this case on January 14, 1994. The record fails to support Goston’s argument.

As has been thoroughly set out above, Goston, from the time he first requested a mental evaluation in this case on July 20, 1993, insisted that such an evaluation in his other pending criminal cases be completed and filed before going forward with the trial. As a matter of strategy, Goston obviously believed if he were found incompetent to stand trial in one of his five pending cases, he could not be forced to trial in the others. The trial court accommodated Goston’s requests in this respect, but continued to schedule periodic hearings to monitor the various cases and missing reports and assure itself that a trial date would be set as soon as possible. In fact, when, on October 31, 1994, the evaluations had been filed in all of Goston’s cases, the trial court set a trial date of May 16, 1995. Because Goston was instrumental in obtaining these continuances from January 14, 1994 to October 31, 1994, that 290-day period, too, was authorized and excludable under either Rule 28.3(a), (c) or (h).

In addition, as previously discussed, it was Goston who, on the day of trial, May 16, 1995, asked for another continuance and received it. Again, it was Goston’s own antics at an earlier trial which purportedly tainted the jury panel he faced on May 16. Thus, the time period between May 16, 1995 and his trial date on November 9, 1995, 177 days, is also excluded under Rule 28.3(c) because he requested the continuance. When this period and the other excludable periods are deducted from the original 940-day period of delay, it reflects Goston was tried within 295 days, well within the required twelve-month period.

Finally, Goston argues that in denying his motion to dismiss on speedy-trial grounds, the trial court failed to make a written order or docket entries reflecting the number of days to be excluded as required by Ark. R. Crim. P. 28.3(i). Goston contends that the trial court’s actions make the State’s burden of establishing excludable periods moot, as the State cannot point to any stated reasoning for the Court’s refusal to try Goston in a timely fashion under the speedy trial rule.

Goston is correct in that Ark. R. Crim. P. 28.3(i) provides that “[a]ll excludable periods shall be set forth by the court in a written order or docket entry.” However, a trial court’s failure to comply with Rule 28.3(i) does not result in automatic reversal. Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996); Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993). This court has held that where a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i). Id. at 254; Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). This is based on the familiar principle that a defendant may not agree with a ruling by the trial court and then attack that ruling on appeal. Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1990).

In the present case, the trial court specifically noted in its docket notations that the time period between June 26, 1995 and November 9, 1995, did not apply to speedy trial because Goston was granted a continuance. As to the other delays, the record clearly demonstrates that these were attributable to Goston or were legally justified. Thus, Goston cannot now complain about the delays he requested for psychiatric evaluations or continuances.

We affirm.


author: Tom GLAZE, Justice.

text:
    John Henry RUSSELL, Debar Russell, Individually and as Administratrix of the Estate of Cleophus Russell, Deceased v. Thomas COLSON
    95-1147
    928 S.W.2d 794
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996
    [Petition for rehearing denied November 4, 1996.]

      Christopher C. Mercer, for appellants.

      Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: David M. Fuqua, for appellee.
   Tom GLAZE, Justice.

On November 21, 1990, John Henry Russell was driving a Ford pickup, eastbound on Highway 88 near the Altheimer city limits when it collided with Thomas Colson’s Ford Bronco that was heading west on Highway 88. The collision took place at or about where the highway intersects Division Street. Russell, on April 24, 1992, filed suit against Colson, alleging the November 21 accident was caused solely and proximately by Col-son. Following a three-day trial, the jury returned a verdict in Colson’s favor. Afterwards, Russell filed a motion for judgment notwithstanding verdict or in the alternative, for a new trial, which the trial court denied.

On appeal, Russell argues the trial court erred in denying his motion for judgment NOV or new trial and asserts the jury lacked substantial evidence to support its verdict in behalf of Col-son. Russell misstates this court’s standard of review when the party seeking directed verdict or a motion for judgment notwithstanding the verdict is the party having the burden of proof in a negligence case. As this court stated in Potlatch v. Missouri Pac. R.R. Co., 321 Ark. 314, 902 S.W.2d 217 (1995), it does not affirm the granting of such motions except in rare circumstances. The Potlatch court further held that no matter how strong the evidence of the party having the burden of proof in a negligence case, “that party is not entitled to have those facts declared to have reality of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially for a jury to believe otherwise.” Here, Russell bore the burden of proof in this negligence case and is therefore bound by the standard reiterated in Potlatch. Russell’s misstatements aside, we conclude from our review that Colson put on a substantial amount of evidence that supported the jury’s verdict. And it is for this reason, we affirm the trial court’s denial of a new trial. ARCP Rule 59(a)(6); Griffin v. Woodall, 318 Ark. 383, 892 S.W.2d 451 (1995).

At trial Russell and Colson offered conflicting and competing theories of how the November 21 accident occurred. Russell claimed that, as he was traveling east in his lane on Highway 88, the Colson vehicle, traveling west on the highway, was weaving, which caused Russell to enter the westbound lane in an unsuccessful attempt to avoid a collision. Colson, on the other hand, denied his vehicle weaved and offered evidence that Russell’s pickup truck merely turned left into the westbound lane in an attempt to enter Division Street. Two eyewitnesses, Page Walt and Matt Jeter, testified in support of Colson’s version of what happened. Walt related that he was driving his pickup on Highway 88 following Russell’s truck when Russell crossed into Colson’s lane in an attempt to turn left onto Division Street. Jeter was a passenger in Walt’s truck, and he corroborated Walt’s version of what transpired. Jeter also testified that it appeared Russell never saw Colson’s vehicle. Russell’s own expert, Joel Hicks, testified that there were more points of impact in Colson’s lane of travel than in Russell’s, that it was possible the collision occurred in Colson’s lane and that it was physically possible for the Russell vehicle to have crossed the highway center line and caused the accident. Hicks further stated that examination of Russell’s truck showed the steering wheel was “turned half a revolution to the left,” thus supporting Colson’s version of what happened.

Although Russell argues his cross examination of Walt and Jeter resulted in raising some questions as to whether they remembered correctly the events surrounding the accident, these two witnesses’ testimony largely conformed to and supported Col-son’s version. And, while Russell’s expert rejected Colson’s story that Russell’s vehicle was turning left when the accident happened, there was ample evidence, including the expert’s own testimony, to show Russell did negligently turn left into Colson’s lane. This court has stated that it is the sole province of the jury to determine not merely the credibility of the witnesses, but the weight and value of their testimony. Gilbert v. Shine, 314 Ark. 486, 863 S.W.2d 314 (1993).

In the present case, Russell failed to show there was no rational basis for the jury’s verdict. Nor, in fact, did he show the court erred in denying his new trial motion, since there was clearly substantial evidence to support the verdict rendered in Colson’s behalf.

In conclusion, we briefly note that Russell raises an argument that because the jury deliberated only twenty-five minutes and took only one exhibit with it, the trial appeared unfair and thus JNOV was warranted for this reason alone. We dispose of this argument by stating that Russell fails to provide any supporting legal authority or convincing argument that a minimum time is required for jury deliberation or that a short deliberation in itself is grounds for the granting of a motion for JNOV or new trial.

Affirmed.

CORBIN, J., not participating.

       Other Russells were parties, but for clarity purposes, we refer only to John Russell. John Russell’s wife, Cleophus Russell, was a passenger at the time of the accident. Her estate was made a party to this suit, and it alleged Cleophus’s death was caused by Colson’s negligence. Mr. Russell’s daughter, Debbar, made a claim for property damage. Emmett Colson, Thomas’s father, was also sued by John Russell. Emmett was alleged to be the owner of the pickup driven by Thomas and alleged to have been negligent in giving Thomas possession and control of the pickup. Emmett was ultimately dismissed from the suit on a directed verdict.


author: Tom Glaze, Justice. ROBERT L. Brown, Justice,

text:
    Robert C. TURNER v. STATE of Arkansas
    CR 96-327
    931 S.W.2d 86
    Supreme Court of Arkansas
    Opinion delivered September 30, 1996

      Jim Pedigo, P.A., by: Jim Pedigo, for appellant.

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

Appellant Robert C. Turner files this appeal from his convictions of burglary and attempted rape and respective consecutive sentences of twenty-year terms. His sole point for reversal is that the trial court should have granted him a continuance on the day of trial because a mental examination report had not yet been filed with the court as required by Ark. Code Ann. § 5-2-305(f) (Supp. 1995).

Briefly, we mention the facts leading to Turner’s arrest. On the morning of November 19, 1994, Mary L. Byrd heard a window break in her dining room, and upon investigation, she went downstairs and found an adult male standing in the dining room. Byrd screamed and tried to escape out the back door, when the intruder struck her. After repeatedly beating Byrd, the intruder then demanded she “get them (clothes) off, bitch.” Byrd was able to get up and ran outside where the intruder caught her and tried to strangle her with an extension cord. By this time, one of Byrd’s daughters appeared, frightening the intruder away. Byrd and her daughter later identified Turner as the intruder from a photo lineup. Turner was subsequently charged and convicted of burglary and attempted rape.

On March 15, 1995, Turner requested a psychiatric examination, asserting he previously had undergone brain surgery which he alleged resulted in a mental defect. The circuit court granted Turner’s motion, ordering Southwest Arkansas Counseling and Mental Health, Inc. (Southwest Mental Health) to determine if Turner suffered from a mental defect at the time of the alleged offenses and whether he was competent to stand trial.

Turner was granted three continuances in order to obtain a report from Southwest Mental Health, and after the third, the trial court set the trial for Wednesday, August 9, 1995. By August 9, an evaluation report still had not been filed. Trial was again postponed, but on Friday, August 11, 1995, defense counsel and the prosecutor conferenced with the trial court and determined they could try the case on Tuesday, August 15, 1995. While no evaluation had been filed, counsel had been in phone conferences with Dr. Michael McAllister, a clinical psychologist with Southwest Mental Health, and on August 11 the doctor sent defense counsel the following facsimile:

Talked with Dr. Seidel — we agree Mr. Turner is competent at this time and is able to form intent even though A-E functions below average.

At the August 15 trial, counsel for both sides announced ready for trial, and they proceeded to select a jury. After jury selection, defense counsel orally asked for a continuance because an evaluation report had still not been filed with the court. He relied on § 5-2-305 (f) and argued that, under this provision, it was mandatory for the person designated to perform the evaluation to file the report of the examination with the clerk of the court. Turner concluded that he should not be forced to trial until such report was filed.

The trial court pointed out that § 5-2-305 does not provide when examination reports must be filed, and it stated that it had been lenient in granting prior continuances. The trial court further noted that he had been in close contact with the defense and prosecution for several days to make sure the case was ready for trial; it also had been made aware of Dr. McAllister’s facsimile reflecting Turner’s competency to stand trial. The trial court concluded that it believed Turner had been given enough time in continuances, but it allowed both counsel to have a preliminary trial hearing to ask Dr. McAllister questions. During that questioning, Dr. McAllister stated that he had what information that he needed to know, and opined that while Turner did have some mental retardation, he could conform his conduct to the law at the time of the crimes with which Turner was charged, and he was able to assist counsel in preparation for trial.

After hearing counsels’ arguments and Dr. McAllister’s pretrial testimony, the trial court ruled that it was Turner’s burden to prepare his defense, and having failed to obtain an evaluation report, it would grant Turner no further continuance for that purpose. In addition, the trial court found Dr. McAllister’s testimony and his earlier facsimile given to Turner four days before trial complied with the court’s prior order directing Turner’s mental examination and report. After the trial court’s rulings, the case was tried to a jury which found Turner guilty.

Turner’s point on appeal asserts the trial court erred in denying a continuance, but his argument focuses mosdy on his construction of Ark. Code Ann. § 5-2-305 (Supp. 1995), and claim that, if an evaluation report was not filed in strict compliance with that statute, he could not be tried. In particular, Turner cites Ark. Code Ann. § 5-2-305(d) (Supp. 1995), which provides as follows:

(d) The report of the examination shall include the following:
(1) A description of the nature of the examination;
(2) A diagnosis of the mental condition of the defendant;
(3) An opinion as to his capacity to understand the proceedings against him and to assist effectively in his own defense;
(4) 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 law was impaired at the time of the conduct alleged; and
(5) When directed by the court, an opinion as to the capacity of the defendant to have the culpable mental state that is required to establish an element of the offense charged.

Turner’s argument is that the facsimile submitted to defense counsel by Dr. McAllister did not stricdy or substantially comply with § 5-2-305(d), nor did the doctor’s facsimile and his pretrial testimony substantially comply with § 5-2-305 (f), which provides that the person designated to perform the evaluation shall file the report of the examination with the clerk of the court. In sum, Turner claims that had the examination been filed in accordance with these provisions, as their plain terms provide, he would not have been placed in the position of deciding, on the day of trial, the extent to which he would make use of the fact that Turner had undergone brain surgery.

We first discuss the relevant principles in addressing the trial court’s decision to deny Turner’s continuance motion. We have repeatedly held that a continuance is addressed to the sound discretion of the trial court, and a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Carter v. State, 325 Ark. 477, 929 S.W.2d 690 (1996). We would also point out, as did the trial court below, that an accused is presumed competent to stand trial, and the burden of proving incompetence is on the accused. Id,; Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995).

Continuance motions are in part governed by Arkansas Rule of Criminal Procedure 27.3, which provides as follows:

The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.

This court has also denoted the following several factors to be considered by a trial court in deciding a continuance motion: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement, and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Wilson v. State, 320 Ark. 142, 895 S.W.2d 524 (1995); see also Ark. Code Ann. § 16-63-402(a) (1987).

Here, the trial court granted four continuances, and in an attempt to confirm if Turner’s case was ready for trial, it confer-enced with the defense counsel and prosecutor four days prior to the trial date and concluded it was. In fact, Turner appeared on the day of trial, both sides announced ready, and Turner did not make his continuance request until after the jury was selected.

At least four days before trial time, Turner knew Dr. McAllister had determined Turner to be competent and would testify accordingly. He also knew the State and the trial court were prepared to try his case on August 15, but filed no motion or affidavit stating reasons why another continuance should be granted. At the conclusion of the preliminary hearing, Turner, besides arguing § 5-2-305 was not complied with, stated his medical problem of brain surgery was a factor in the case and the psychologist’s report would specify the problems. As the prosecutor pointed out, Turner could have best obtained that information by interviewing the doctor who performed the surgery, but he failed to do so. In sum, the record simply fails to reveal Turner acted diligendy in making another continuance request on the day of trial, and the trial court was well within its discretion to deny it.

Finally, we would also mention that Turner failed to show that he had been prejudiced by the trial court’s denial of his continuance motion. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). While we could well agree that Dr. McAllister’s report failed to comply with the provisions contained in § 5-2-305, Turner never argued that his defense would ultimately depend upon incompetency or insanity. Turner offered no indication that he would request evaluation by another psychologist in an attempt to contest Dr. McAllister’s findings of competency. Rather, Turner testified, asserting the alibi defense, that he was at his sister’s house when the crimes were committed. Because Turner failed to show how Dr. McAllister’s report would have altered the evidence presented at trial, he has shown no prejudice resulted from the trial court’s denial of his continuance motion.

For the above reasons, we affirm.

Brown, J., dissents.

ROBERT L. Brown, Justice,

dissenting. On March 15, 1995, appellant Robert C. Turner notified the State of his insanity defense and moved the court for a psychiatric examination and for all records, reports, evaluations, and examinations relating to it. That same date, the trial court ordered the evaluation and also ordered the examining agency to “make available to counsel the records of said examination, including all existing medical and pertinent records, including ‘raw data.’ ” The court further ordered the agency to transmit “a report of the findings of the staff” concerning Turner’s mental competency. None of this was done. Rather, the examining psychologist, Dr. Michael McAllister, was examined after the jury was sworn about his work to date. Dr. McAllister admitted on the stand that his report was not yet complete. Understandably, Turner’s counsel argues in his brief on appeal:

As a result, Appellant’s counsel was thus faced, on the very day of trial, with making a lightning-quick decision as to a matter of strategy, namely, the extent to which he would make use of the fact of the partial removal of Appellant’s brain in Appellant’s defense.

As a practical matter, defense counsel was forced to abandon the insanity defense.

This court has dealt with analogous situations on two prior occasions. See Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). In Hayes, the defendant had sought staff reports in conjunction with the court-ordered psychiatric examination. The mental health agency’s report addressed the defendant’s borderline retardation and diagnosed him as being without psychosis, although suffering from alcohol addiction and a severe antisocial personality. The report stated that it was based on historical data and physical and neurological examinations. The defendant did not receive copies of the underlying psychiatric data. We concluded, in reversing the conviction:

Here, it could be that an inspection and copying of these records and reports would have better enabled the appellant to prepare his defense, or interpose the defense of insanity, or present at trial crucial evidence bearing on mitigation, such as possible mental retardation, during the sentencing phase of the trial. We hold it was prejudicial error to deny him access to these agencies’ reports.

Hayes, 274 Ark. at 444, 625 S.W.2d at 500.

Similarly, in Westbrook v. State, supra, the defendant’s basic defense was insanity at the time the offense was committed. We noted that the burden of proof on the defendant was preponderance of the evidence, and that the defendant had moved for the full State Hospital records relating to his two commitments. The trial court granted the motion but the data was never furnished to him. This court stated: “Due to the nature of the defense we feel it was necessary that appellant have these records, if they exist, in order to fully prepare his defense.” Westbrook, 265 Ark. at 745, 580 S.W.2d at 707. We concluded that “the materiality of the records has clearly been shown and the need for them was apparent.” Westbrook, 265 Ark. at 746, 580 S.W.2d at 707. In Westbrook, we granted a new trial for this and other reasons.

The trial court, with justification, was frustrated by the fact that the trial had been continued four times to allow the agency’s report to be filed. On the day of the trial, defense counsel advised the court that he had subpoenaed Dr. McAllister for trial and raised the question of what else he could have done to precipitate a report. The same question comes to my mind: What can defense counsel do when an examining psychiatrist or psychologist is recalcitrant or too busy and fails to file the required report? Here, the examining psychologist clearly knew about the trial date and the fact that the trial court had ordered that the report and backup data be filed. He simply had been unable to complete the report. Defense counsel, as a result, was hamstrung in mounting his defense and was forced, in effect, to go to trial without the benefit of the psychologist’s report, much less the underlying data which were at issue in the Hayes and Westbrook cases.

I further conclude that the report and data must be transmitted and filed before trial. Otherwise, it would be useless to both the prosecution and the defense in waging battle over the defendant’s fitness to proceed at trial and competency at time of the offense.

Here, Dr. McAllister candidly admitted that he was too busy to complete the report, that there was underlying data on which the report would be based, that one piece of outstanding information still remained to be garnered, and that he would probably have the report filed in two to three weeks. A one-sentence hand-written note from Dr. McAllister four days before trial setting forth his conclusion of competency followed by his testimony on the day of trial do not cure the obvious defect in procedure. They certainly do not rise to the stature of the report required by Ark. Code Ann. § 5-2-305 (Supp. 1995). The defense was caught up short by the failure of the examining agency to comply with the court order and state law.

One final point. I cannot say that defense counsel was dilatory in obtaining the report. In these instances, the examining psychiatrist or psychologist holds the cards. Counsel asked for continuances to buy time, including a request on the day of the trial after the jury was seated, to give him time to review the report. That was denied him. I would remand for a new trial.

       In explaining why a report had not been filed, the doctor said that he had only one missing piece of information which was some legal information concerning a medical malpractice suit involving Turner. Nonetheless, the doctor stated he believed he knew what he needed in order to give an opinion.