author: Tom Glaze, Justice. Steele Hays, Justice, dissenting in part, concurring in part.

text:
    Willie Frances MAY v. BOB HANKINS DISTRIBUTING COMPANY
    89-261
    785 S.W.2d 23
    Supreme Court of Arkansas
    Opinion delivered March 5, 1990

      Fulkerson & Todd, P.A., by: Michael E. Todd, for appellant.

      Jacoway, Sherman & Pence, by: William F. Sherman, for appellee.
   Tom Glaze, Justice.

This is an appeal from the chancellor’s order setting aside two default judgments entered against the appellee on February 2,1988, and March 15,1988. The appellant received two judgments against her former husband, Billy May, for failure to comply with their divorce decree and for attorney fees. Billy May is employed by the appellee. Two writs of garnishment after judgment were served on the appellee. When the appellee failed to respond to either of the two writs, two default judgments were entered against the company totaling $22,442.77. In setting aside the default judgments, the chancellor found that Ark. Code Ann. § 16-58-124 (1987) governed service of the writs, and that the service of the writs was not in compliance with this statute.

In her appeal, the appellant argues that the chancellor erred in finding that § 16-58-124 was not superseded by ARCP Rule 4(d)(5). The appellee argues that the chancellor was correct in finding that service of the writs was invalid, and in addition, makes three other arguments on why the chancellor’s setting aside the default judgments must be affirmed. We agree with the appellant’s argument that ARCP Rule 4(d)(5) controls service and find no merit in two of the appellee’s alternative arguments. However, we find that appellee’s other argument was not fully developed below. Therefore, we reverse and remand.

The first writ of garnishment was served on the appellee’s bookkeeper, Loretta Bozeman, at the corporation’s office on November 16,1987. According to her testimony, at the time the writ was served she and another woman were the only ones in the office, and she was more or less in charge. On February 11,1988, the second writ of garnishment was served on Wanda Hankins, the secretary of the corporation and wife of Bob Hankins, the president of the corporation. The returns did not reflect if the president was unavailable when the writs were served, and testimony elicited at the hearing regarding the subject was inconclusive. Bob Hankins testified that since both writs were served on Mondays, he, in all probability, was there. However, the company does not keep any records on when Hankins is in or out of the office. According to Hankins, he first learned about the default judgments when a writ of garnishment was served on the company’s bank account in July of 1988. At this time, the appellee filed a Motion to Set Aside Judgment.

We first must decide whether Ark. Code Ann. § 16-58-124 or ARCP Rule 4(d)(5) controls service of a writ of garnishment on a domestic corporation. As previously noted, the chancellor held §16-58-124 was controlling and the service attempted in this matter failed to comply with it. The appellant argues that Rule 4(d)(5) superseded § 16-58-124, and that her service of the writs met all the requirements of the Rule. Section 16-58-124(a) and ARCP Rule 4(d)(5) provide the following:

§ 16-58-124 METHOD OF SERVICE — CORPORATIONS
(a) When the defendant is a corporation created by the laws of this state, the service of summons may be upon the president, mayor, or chairman of the board of trustees. In the case of the absence of the above officers, then it may be served upon the cashier, treasurer, secretary, clerk, or agent of the corporation.
ARCP 4 SUMMONS
(d) PERSONAL SERVICE INSIDE THE STATE: A copy of the summons and the complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows: (5) Upon a domestic or foreign corporation ... by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.

In our per curiam of December 18, 1978, we adopted the Arkansas Rules of Civil Procedure based on Act 38 of 1973 and our constitutional and inherent authority to regulate procedure in the courts. Before that time, the Civil Code controlled all aspects of practice and procedure in this state. Section 16-58-124 is part of that Civil Code and is found in Title 16 of the Code, Practice, Procedure, and Courts, and in subtitle 5, Civil Procedure Generally. Act 38 provides that all laws in effect at that time regarding pleading, practice and procedure in civil proceedings would remain in effect only until this court prescribed rules regarding the same. Since the adoption of the Rules of Civil Procedure, this court has listed statutes in per curiams that were deemed superseded. Section 16-58-124 was not included in the list. However, in the per curiams, this court has stated that the question of supersession of all other rules and statutes will be determined by Act 38 and the supersession rule — “All rules in conflict with the Arkansas Rules of Civil Procedure . . . shall be deemed superseded. . . .” See ARCP Rule 1, Reporter’s notes; see also Venable v. Becker, 287 Ark. 236, 697 S.W.2d 903 (1985). Under ARCP Rule 81 (a), it is stated that these rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this state, except in those instances where a statute which creates a right, remedy, or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.

The facts in the present case clearly illustrate that § 16-58-124 and Rule 4(d)(5) cannot stand together. Because the absence of the corporation’s president was never shown, service on the bookkeeper and the secretary of the corporation would not be proper under § 16-58-124. But, under these same circumstances, service on the secretary of the corporation and the bookkeeper, who testified that she was “more or less in charge of the office” at the time of the service, would be proper under Rule 4(d) (5). Since these provisions conflict and § 16-58-124 does not fit into the exception described in ARCP Rule 81(a), we must hold that Rule 4(d)(5) supersedes § 16-58-124. In so stating, we note the case of Travelodge International v. Handleman National Book Co., 288 Ark. 368, 705 S.W.2d 440 (1986), where this court stated that garnishment is a special statutory procedure and to the extent that the garnishment procedures differ from the Rules of Civil Procedure, the statutes control. However, in that case, this court was referring to Ark. Code Ann. §§ 16-110-401 to -110-415 (Garnishment Proceedings), and these statutes do not contain a method of service provision. Rather, § 16-110-402(2)(A) (Supp. 1989), states that the writs shall be served in the same manner as writs of summons, which would be pursuant to ARCP Rule 4.

Further, we note Rule 4(k), a 1986 amendment to the Rule, which states the following:

Whenever any rule or statute requires service upon any person, firm, corporation or other entity of notices, writs or papers other than a summons and complaint, including without limitation writs of garnishment, such notices, writs or papers may be served in the manner prescribed in this Rule for service of a summons.

This provision makes it clear that writs of garnishment are to be served pursuant to ARCP Rule 4.

Since we find error in the chancellor’s holding, we now turn to the appellee’s alternative arguments of why the default judgments should be set aside. The chancellor did not address these arguments below. However, we can address these issues, because we review chancery cases de novo, and the chancellor’s decision will be affirmed if correct for any reason. See Apple v. Cooper, 263 Ark. 467, 565 S.W.2d 436 (1978). We first address the appellee’s argument that the chancellor’s ruling can be affirmed, because the default judgments should have been set aside pursuant to ARCP Rule 55(c) for excusable neglect, unavoidable casualty, or other just cause.

Also, under ARCP Rule 60(c)(7), the trial court, after 90 days after the filing with the clerk of the court, has the power to vacate a judgment for unavoidable casualty or misfortune preventing the party from appearing or defending. However, before a judgment can be set aside under this rule, the defendant in his motion must assert a valid defense to the action and make a prima facie showing of the defense at the hearing. ARCP Rule 60(d). We have stated that default judgments are not favorites of the law and should be avoided when possible. See Burns v. Shamrock Club, 271 Ark. 572, 609 S.W.2d 55 (1980). Further, we have noted that default judgments are a harsh and drastic action and may deprive a party of substantial rights. Id.

While the chancellor did not rule on this issue below, the following evidence was presented in the appellee’s petition to set aside the judgments and by testimony at the hearing, on why the appellee failed to answer the writs. Wanda Hankins, the secretary of the corporation and the bookkeeper were the only ones that knew about the service of the writs of garnishment. When the writs were served, the appellee was already withholding money from Billy May’s salary pursuant to an earlier writ of garnishment from appellant’s judgment for child support. The bookkeeper believed and advised Wanda Hankins that the writs served on the corporation in November and February were related to this earlier writ of garnishment, with which the appellee was already complying. However, Wanda Hankins did testify that she wondered why she was receiving other writs when they were already withholding the money. In addition, the testimony showed that during this same time the company received and answered a writ of garnishment from the Surgical Clinic of Northeast Arkansas for medical expenses incurred by Billy May.

After reviewing the above evidence, we agree that the appellee’s failure to answer was due to neglect, but we cannot say that it was excusable. In Metal Processing, Inc. v. Plastic & Reconstructive Associates, 287 Ark. 100, 697 S.W.2d 87 (1985), this court faced a similar fact situation. There, a writ of garnishment was served on the company in compliance with ARCP Rule 4, but the company failed to answer and a default judgment was entered. In the company’s motion to set aside the default judgment, the president of the company argued that the defendant had only been employed for five weeks and was not due any money and that he did not realize that the writ was directed to him but assumed that it was just another suit against the defendant for his failure to pay his bills. In affirming the default judgment, this court noted that the writ’s simple and direct message was written in plain language and it is impossible to say that the garnishee’s failure to understand and comply with the writ is excusable neglect.

We believe that the holding in Metal Processing controls this case. As in Metal Processing, the writs, here, were written in plain language and included the dates of the appellant’s judgments. In addition, both writs clearly stated that a default judgment would be entered against the corporation for the amount of the judgments if no reply was made within twenty (20) days. A simple checking of the prior writ of garnishment would have shown that these writs were referring to two separate judgments. The secretary of the corporation, herself, expressed doubt as to why the writs would be served again if they applied to the earlier judgment. With such information before the corporation, the failure to comply with these writs cannot be excusable neglect.

Next, the appellee alleges five defects with the garnishment proceedings. We summarily dismiss two of these alleged defects, because the appellee failed to cite any legal authority in support of its argument. See Jones v. Ragland, 293 Ark. 320, 737 S.W.2d 641 (1987).

Appellee first alleges that the garnishment was defective because the garnishee was not accurately and properly named as a party. The appellee’s name is Bob Hankins Distribution Company, Inc., but the name of Bob Hankins Distributing Company was used in the writs of garnishment. We have stated that when there is some slight elaboration of the party’s exact corporation name, such an error is immaterial when no separate party is actually involved. Meek v. U.S. Rubber Tire Co., 244 Ark. 359, 425 S.W.2d 323 (1968). A misnomer is only fatal when it is so material and substantial as to indicate a different entity or to produce doubts as to the corporation intended to be sued. See 19 Am. Jur. 2d Corporations § 2216 (1986). Here, the garnishee is clearly identifiable. In fact, Bob Hankins admitted during his testimony that he refers to his company as Bob Hankins Distributing Company and Bob Hankins Distributing, and that Bob Hankins Dist. is on his letterhead.

Likewise, we find no merit in the appellee’s argument that the garnishment proceeding was defective because the garnishment papers did not specify the amount owed. Both of the writs of garnishment served on the appellee contained the amount of the judgments entered against its employee. The writs also contained the following language:

(T)he petitioner alleges that the Garnishee above named is indebted to the said defendant or has in his hands and possession goods, chattels, monies, and effects belonging to said defendant. Now, therefore, you are hereby commanded to summon the said Garnishee above named to appear in this Court within 20 days from the date of delivery of this writ to the Garnishee and then and there answer what goods, chattels, monies, credits, effects he may have in his hands or possession belonging to said defendant to satisfy the judgment aforesaid ....

The purpose of these writs of garnishment is to summon the garnishee to appear before the court and reveal how much money is owed to its employee. However, since the appellee failed to answer, the court properly entered default judgments against the garnishee for the full amount specified in the appellant’s judgments against Billy May plus costs pursuant to Ark. Code Ann. § 16-110-407 (1987).

In its last allegation of defects in the garnishment proceedings, the appellee relies on Ark. Code Ann. § 16-110-133 (1987) to argue that there must be a direct action against the garnishee with adequate notice of the claim being made. The appellee’s reliance on this statute is misplaced, because § 16-110-133 applies to attachment proceedings. Here, there has been no attempt to attach the garnishee’s property. Section 16-110-407 controls this situation, and it is a matter of settled law that a default judgment may be entered against a garnishee upon his failure to answer. See Karoley v. A.R.&T. Electronics, 235 Ark. 609, 363 S.W.2d 120 (1962); Wilson v. Overturf, 157 Ark. 385, 248 S.W. 898 (1923).

Finally, the appellee seems to argue that our statute, which allows default judgments to be entered when a writ of garnishment is not answered, is unconstitutional. Specifically, the appellee contends that there is lack of adequate notice of the plaintiffs claims against the garnishee. We decline to reach this constitutional issue. The parties fully developed this case below so that we were able to consider and decide the foregoing issues in this de novo review. However, such is not true regarding the due process question in this appeal. In cases when action in chancery court has prevented the case from being fully developed, we remand. Ark. Nat’l Bank v. Cleburne Bank, 258 Ark. 329, 525 S.W.2d 82 (1975).

For the reasons stated above, we reverse and remand.

Hays, J., concurs in part and dissents in part; Price, J., not participating.

Steele Hays, Justice, dissenting in part, concurring in part.

While I concur in the result, I disagree with the majority that it is error for a trial court to vacate a default judgment against a garnishee who has demonstrated to that court’s satisfaction that the garnishee is not indebted to the judgment debtor. This court has said repeatedly that default judgments are not favored by the law. Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987); Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984); Burns v. Madden, 271 Ark. 572, 609 S.W.2d 55 (1980); Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976). The granting of a default judgment is a harsh and drastic action and may deprive a party of substantial rights. Lambert Bros. Inc. v. Tri-City Construction Co., 514 S.W.2d 838 (Mo. App. 1974), cited in Winters v. Lewis, supra. They are to be avoided if fairly possible, A.O. Smith Harvester Products, Inc. v. Burnside, 282 Ark. 27, 665 S.W.2d 288 (1984); Sawyer v. Sawyer, 261 Iowa 112, 152 N.W.2d 605 (1967).

Moreover, we have held that the granting or denial of a motion to set aside a default judgment is within the sound discretion of the trial court. Burns v. Shamrock Club, 271 Ark. 572, 609 S.W.2d 55 (1980); Renault Central v. International Imports, 266 Ark. 155, 583 S.W.2d 10 (1979). The trial court in this case exercised that discretion, soundly I believe, on behalf of a garnishee who had failed to answer a garnishment under a misapprehension that the garnishment applied to weekly deductions which were already being withheld from the wages of the

judgment debtor by the garnishee. Nor does the appellant even contend that the garnishee-appellee was in fact indebted to the judgment debtor. If the trial court does indeed have discretion to vacate a default judgment I cannot agree that that discretion has been abused under the circumstances presented by this case.

       In the alternative, the appellant argued that service was proper under § 16-58-124. However, since we agree with her first point, it is unnecessary to address this argument.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    MEYERS GENERAL AGENCY v. Marjorie LAVENDER, James Lavender, and Commercial American Insurance, Inc.
    89-297
    785 S.W.2d 28
    Supreme Court of Arkansas
    Opinion delivered March 5, 1990
    [Rehearing denied April 2, 1990.]

      Daggett, Van Dover, & Donovan, by: Jesse B. Daggett, for appellant.

      Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: Randel K. Miller, for appellees.

      Hays, J., would grant rehearing. Price, J., not participating.

   Tom Glaze, Justice.

Appellant obtained judgment against appellees in the sum of $30,633.79, but the trial court denied appellant’s request for attorney’s fees. On appeal, appellant claims it is entitled to attorney’s fees under Ark. Code Ann. § 16-22-308 (1987), and the trial court erred in holding § 16-22-308, which was enacted on April 1, 1987, did not apply to this case.

We have frequently noted that the basic pleadings and the judgment or decree appealed from are ordinarily essential constituents of the abstract. Davis v. Wingfield, 297 Ark. 57, 759 S.W.2d 219 (1988). Since there is only one transcript, it would be impractical to require all the members of the court to examine it to determine the contents of the lower court’s judgment. Id.

Here, appellant failed to abstract any of the proceedings below, including the judgment and pleadings. In fact, appellant’s original complaint filed in this matter is neither abstracted nor made a part of the transcript. While the parties seem to agree in their arguments that the appellant’s suit was filed before § 16-22-308 was enacted, appellant’s statement of the case reflects it was filed afterwards, August 31, 1988. The August 31, 1988, date probably is in error since appellant’s amended complaint bears that same date. Even so, neither the abstract nor transcript reflects any other date concerning when this action may have been filed.

Because the judgment and pleadings were not abstracted, we affirm pursuant to Rule 9(e)(2). In doing so, we further note that we viewed this matter under provisional Rule 9, which provides for the alternative appendix system. In re Revision of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, 296 Ark. 581, 757 S.W.2d LVIII (1988). Appellant filed no appendix, and as mentioned previously, even the transcript submitted on appeal omits pleadings which are relevant to the issues on appeal.

We affirm.

Price, J., not participating.


author: Otis H. Turner, Justice.

text:
    Thomas Lee DEERE v. STATE of Arkansas
    CR 89-152
    785 S.W.2d 31
    Supreme Court of Arkansas
    Opinion delivered March 5, 1990

      Morris & Hodge Lawyers, by: Henry C. Morris, Esq., for appellant.

      Steve Clark, Att’y Gen., by: John David Harris, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

The appellant, Thomas Lee Deere, upon conviction of two counts of burglary, was sentenced to consecutive terms of thirty years and ten years. In addition, he was sentenced to thirty years on another burglary count and thirty years for the sale of a controlled substance; both sentences were to run concurrently with the others.

The thirty-seven year old appellant’s educational background consists of eight grades of formal schooling, a General Education Certificate, two years of vocational training, as well as considerable practical education from four previous criminal trials, in one of which he represented himself.

At a pretrial hearing, the appellant expressed a desire to represent himself, although he was offered appointed counsel, and counsel was in fact appointed to assist him at his request. At the pretrial hearing the following exchange occurred between the appellant and the trial court:

THE COURT: Mr. Deere, I understand through your attorney that you wish to represent yourself, is that true?
MR. DEERE: Yes, sir.
THE COURT: Do you feel like you’re competent to do that?
MR. DEERE: Yes, sir.
THE COURT: You have the absolute constitutional right to an attorney, and you have one, but also, you have the absolute constitutional right to represent yourself if you’re competent to do so. I know you’ve been through the criminal justice mill just about every way you probably can. You’ve probably been through several trials haven’t you?
MR. DEERE: Yes, sir.
THE COURT: How many trials would you say you’ve been through?
MR. DEERE: Four.
THE COURT: Did you have lawyers?
MR. DEERE: In all of them but one.
THE COURT: I know one of them you had here; you were acquitted. . . .
MR. DEERE: Yes, sir. I had two jury trials here and one in Texarkana. I represented myself in the Eighth Circuit Court in Pine Bluff.
THE COURT: How about your education, what kind of education do you have?
MR. DEERE: I got a GED, and I got two years of vo-tech.
THE COURT: Do you have any mental problems, learning disabilities, or anything like that?
MR. DEERE: No.
THE COURT: Do you feel comfortable representing yourself?
MR. DEERE: Yes, sir, I do.
THE COURT: Do you understand all the pitfalls? You probably don’t have any understanding of the twenty-eight exceptions of the hearsay rule and all sorts of things like that you wouldn’t know anything about.
MR. DEERE: All I can really ask for at this time is I got a couple of motions to file, but I would like to have a little bit of time to go over the evidence. . . .
THE COURT: Do you want Mr. Cooper to be standby counsel and help you?
MR. DEERE: Yes, sir, I do.
THE COURT: But you don’t want him to represent you, you just want him to be there, is that what you want?
MR. DEERE: Yes, sir, just as a guide.

(T. 52-55)

Thereafter, subsequent to a hearing on the motions, the following dialogue ensued:

THE COURT: Now, Mr. Deere, you’ve been through these motions, and you understand how difficult it is for you not having any legal knowledge, but you appear to me to be competent. I’m going to allow you to continue representing yourself if you feel that’s what you want to do.
MR. DEERE: Yes, sir, that is what I want to do.
THE COURT: There’s some advantages. You can bring things out that you probably couldn’t when you weren’t representing yourself through your opening statement and closing argument, but the downside is that you don’t know a whole lot about the rules of evidence.
MR. DEERE: Yes, sir. I just got a book yesterday on the rules of evidence.. . . I’m ready today if they want to go ahead today. I’m ready for them.
THE COURT: Well, I just want to make sure that you know what you’re doing when you represent yourself. I’m going to let you do it, because I think you’re competent to do so. Do you understand all the dangers of representing yourself?
MR. DEERE: I’ll go ahead and wait until Wednesday. I need to do a little reading and research, but I’ll be ready Wednesday.
THE COURT: I find you competent to represent yourself.

(T. 98-99)

After conviction and sentencing, the appellant expressed a desire to appeal, and his present attorney was appointed to prepare this appeal. Four points for reversal are stated but none have merit, and the conviction is affirmed on all counts.

Rule 11 (h) of the Rules of the Supreme Court, dealing with non-meritorious appeals, provides:

Any motion by counsel for a defendant in a criminal case for permission to withdraw made after notice of appeal has been given shall be addressed to this court, shall contain a statement of the reason for the request, and shall be served upon the defendant appealing. A request to withdraw on grounds that the appeal is wholly without merit shall be accompanied by a brief referring to anything in the record that might arguably support the appeal, together with a list of all objections made by the appellant and overruled by the court, and all motions and requests made by the appellant and denied by the court, accompanied by a statement as to the reason counsel considers that the points thus raised would not arguably support the appeal. The brief may be typewritten if counsel is representing an indigent person by appointment, as in other cases. The Clerk of this court shall furnish the appellant with a copy of his counsel’s brief, and advise the appellant that he has 30 days within which to raise any points that he chooses and that this may be done in typewritten or hand-printed form and accompanied by his affidavit that he has not received any assistance from any inmate of the Department of Correction or of any other place of incarceration in the preparation of this response. The Clerk shall see that such responses by an appellant are served on the Attorney General who shall proceed to file his brief on behalf of the state pursuant to sections [subsections] (f) and (g) of this rule within 30 days after such service and to serve a copy of his brief on the appellant as well as on appellant’s counsel. After a reply brief has been filed or after the time for filing such a brief has expired, the motion for withdrawal shall be submitted to the court as other motions are submitted. If, upon consideration of the motion, it shall appear to the court that the judgment of the trial court should be affirmed or reversed, the court may take such action on its own motion, without any supporting opinion.

The appellate counsel on the one hand admits there is no merit to this appeal and moves to withdraw as counsel, but at the same time he fails to comply with the requirements of Rule 11(h). Counsel has stated that he has written his brief “in the spirit of, (if not in actual compliance with), the concept of an Anders brief.” However, he has neglected to refer to anything in the record supportive of an appeal or to supply a list of the appellant’s objections and motions. Instead, he raises two issues not addressed at the trial court level. We are unable to consider them.

It is well-settled law that an accused may make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). In order to effectively waive the right to counsel, the accused must be made aware of the dangers and disadvantages of self-representation, must know what he is doing and thus make his choice with “eyes open.” Faretta v. California, 422 U.S. 806 (1975). We are convinced that this thirty-seven year old accused was properly advised not only of his right to counsel, but also of the dangers inherent in self-representation. With such knowledge, the appellant made his own choice. Though counsel was appointed for him and remained present throughout the trial, the appellant elected neither to seek his assistance nor to employ him in the course of the proceedings.

The appellant and his present court-appointed appellate counsel cannot complain that the trial court should have directed the court-appointed trial counsel to be more aggressive in rendering assistance. The state may not force a defendant to accept counsel against his will or deny his request to conduct his own defense. Nichols v. State, 273 Ark. 466, 620 S.W.2d 942 (1981).

The judgment of the lower court is affirmed.

Price, J., not participating.


author: Jack Holt, Jr., Chief Justice. Per Curiam.

text:
    Tyrone JONES v. STATE of Arkansas
    CR 89-201
    785 S.W.2d 217
    Supreme Court of Arkansas
    Opinion delivered March 12, 1990
    [Supplemental Opinion on Denial of Rehearing May 21, 1990.]

      William R. Simpson, Jr., Public Defender, and Jerry J. Sailings, Deputy Public Defender, by: Didi H. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On June 30, 1989, the appellant, Tyrone Jones, pleaded guilty to, and was convicted of: 1) three counts of robbery and sentenced to ten years on each count to run consecutively to one another and to all of his other convictions; 2) robbery and sentenced to five years to run consecutively to his other convictions; 3) aggravated robbery and sentenced to life imprisonment; 4) burglary and sentenced to ten years and theft of property and sentenced to five years, both to run concurrently to each other but consecutively to his other convictions; and 5) escape in the second degree and sentenced to two years to run consecutively to his other convictions.

Jones received fourteen months jail time credit for time served prior to his sentence to imprisonment, which was applied only to the escape in the second degree conviction.

In his sole point of error, Jones contends that the trial court erred in failing to give fourteen months of jail time credit to each of the imposed sentences.

Arkansas Code Ann. § 5-4-404 (1987) provides as follows:

If a defendant is held in custody for conduct that results in a sentence to imprisonment, the court shall credit the time spent in custody against the sentence.

Although one may not appeal from a guilty plea, Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987), and A.R.Cr.P. Rule 36.1, we have held that a criminal defendant who has pleaded guilty may appeal on the issue of the application of jail time credit. Cox v. State, 288 Ark. 300, 705 S.W.2d 1 (1986).

In Travis v.State, 292 Ark. 463, 730 S.W.2d 501 (1987), we held that the defendant was not entitled to credit for his time in jail or the penitentiary because the time he was serving was on an unrelated charge. In referring to Ark. Stat. Ann. § 41-904 (Repl. 1977) (now codified as Ark. Code Ann. § 5-4-404 (1987)), we stated that “that law clearly does not apply when, as here, the defendant’s incarceration exists because of charges or criminal conduct other than the one on which the defendant seeks credit and for which he is convicted and sentenced.” See McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986); Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980).

In this case, Jones was initially charged on April 5, 1988, with one count of aggravated robbery and two counts of robbery and held in continuous custody (except for a brief period while on escape) until he was sentenced to imprisonment on June 30,1989. He was also charged with the following offenses: 1) on April 22, 1988, with aggravated robbery; 2) on May 24, 1988, with aggravated robbery, burglary, kidnapping, rape, and two counts of theft of property; and 3) on July 5, 1988, with escape in the second degree.

The subsequent offenses with which Jones was charged are wholly unrelated to the conduct that resulted in his sentence of three consecutive ten year terms for three counts of robbery, which was based on the April 5,1988, charges. Accordingly, he is entitled to 452 days of credit for the time served between April 5, 1988, and June 30, 1989. Under the rationale of Travis, supra, jail time credit should only be applied to the sentences relating to the April 5, 1988, charges.

Consequently, the judgment is affirmed as modified and remanded in accordance with this opinion.

Price, J., not participating.

789 S.W.2d 730

William R. Simpson, Jr., Public Defender, by: Didi H. Sailings, Deputy Public Defender, for appellant.

Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING MAY 21, 1990

Per Curiam.

In this matter, the trial court denied appellant’s application for jail time credit, and on appeal, we affirmed as modified and remanded the trial court to conform its holding to show that the appellant has 452 days of jail time credit. The state, in its petition for rehearing, contends this court had no appellate jurisdiction of the trial court’s denial of the appellant’s motion for jail time credit because the sentences imposed against appellant arose from his guilty pleas, from which he had no right to appeal. See A.R.Cr. P. Rule 36.1; Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987). The state is wrong.

Under Ark. Code Ann. § 16-90-111 (b)(1) (Supp. 1989), a circuit court has authority to reduce a sentence within 120 days after the sentence is imposed or after receipt of a mandate issued upon affirmance of the judgment or dismissal of the appeal. Here, the appellant pled guilty to three felonies on June 12, 1989, and on June 30, 1989, or eighteen days later, he also requested jail time credit, which the trial court denied. Appellant’s request for jail time credit and reduction of sentence was timely made, and he duly filed his appeal from the trial court’s denial of his request. Clearly, we had appellate jurisdiction to decide the correctness of the trial court’s decision.

The state correctly notes that, in our opinion, we misrepresented the holding in Cox v. State, 288 Ark. 300, 705 S.W.2d 1 (1986), as stating that a defendant who has pleaded guilty may appeal on the issue of the application of jail time credit. Even so, since the lower court and this court in the present case had jurisdiction to consider appellant’s argument for jail time credit under § 16-90-111(b)(1), such a miscue in no way affects the result this court reached. In reading Cox, it is difficult to discern exactly how that matter came to this court for review, but it is of no import. There, Cox filed his motion for jail time credit in circuit court within three years of his conviction judgment, and the lower court and this court on appeal could have considered such issue under A.R.Cr.P. Rule 37, even if Cox had been unable to raise it in ány othér manner. See Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987).

The state’s petition for rehearing is denied.

       Rule 37 has since been abolished. See Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989).


author: Jack Holt, Jr., Chief Justice. Robert H. Dudley, Justice, concurring in part; dissenting in part.

text:
    John W. PARKS v. STATE of Arkansas
    CR 89-180
    785 S.W.2d 213
    Supreme Court of Arkansas
    Opinion delivered March 12, 1990

      Roger T. Jeremiah, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This case is an appeal from the denial of a petition for relief filed pursuant to Ark. R. Crim. P. 37. We affirm.

Appellant, John W. Parks, pleaded guilty to aggravated robbery and theft of property with a value of $2500 or more. He was sentenced to twenty-five years, with eight years suspended, on the aggravated robbery charge and seventeen years on the theft of property charge, the sentences to run concurrently. Subsequently, Parks filed a Rule 37 petition alleging that his pleas were made without effective assistance of counsel.

An evidentiary hearing was held. During the hearing, counsel for Parks orally amended his petition to include an allegation that his pleas should be set aside because the court failed to ask him whether there was a factual basis for the pleas and because there was no factual basis for the pleas. The court denied Parks’ petition, finding that counsel was effective and that there was a factual basis for his pleas.

Parks contends that he entered his pleas of guilty without effective assistance of counsel in that counsel did not (1) file a motion to suppress a statement made by him to police, which he alleges was given after he was promised leniency; (2) file a motion for discovery; (3) advise him or discuss potential witnesses with him; (4) prepare him for trial; (5) investigate the case; and (6) explore the possibility of either an insanity defense or the possibility of using his mental condition as a mitigating factor.

A petitioner has the burden of overcoming the strong presumption that his counsel was competent. Rheuark v. State, 299 Ark. 243, 771 S.W.2d 777 (1989); Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988). To prove ineffective assistance of counsel, a petitioner must show that (1) his attorney made so serious an error that he was not functioning as the “counsel” guaranteed by the sixth amendment and that (2) his counsel’s deficient performance was so prejudicial as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984).

The Strickland standard has been made applicable to challenges to guilty pleas based upon ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52 (1985). In order to satisfy the prejudice requirement of Strickland, a defendant who pleads guilty must demonstrate but for counsel’s errors, he would not have done so. Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988). As this court stated in Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984), “A defendant whose conviction is based upon a plea of guilty normally will have difficulty proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged.”

Parks has shown neither serious errors or that he would not have pleaded guilty but for counsel’s alleged errors. In fact, he concedes that he cannot “pinpoint” one error that was definitely prejudicial, but asserts that his counsel’s overall performance was ineffective. We do not recognize cumulative error in allegations of ineffective assistance of counsel. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985).

In sum, the appellant has failed to meet the heavy burden of proving ineffective assistance of counsel. Strickland, supra.

Parks also contends that the trial court erred in failing to question him as to whether there was a factual basis for his pleas; and in not establishing a factual basis for his pleas because (1) the court was given the incorrect information that the victim of the robbery charge and the theft of property charge was the same person and (2) because the State did not prove that the value of the stolen automobile was $2500 or more in support of the charge of theft of property.

Ark. R. Crim. P. 24.6 provides that “[t]he court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish a factual basis for the plea.”

A factual basis requires the existence of sufficient facts from which a judge may fairly conclude that a defendant could be convicted if he stood trial. Furr, supra. See also Smith v. State, 291 Ark. 496, 725 S.W.2d 849 (1987). The purpose of the factual basis requirement is to prevent an accused from pleading guilty on the mistaken assumption that his conduct was unlawful when it was not. Furr, supra.

A factual basis is most commonly established by inquiry of the accused and of the prosecutor and by an examination of the presentence report. Id. However, Rule 24.6 does not require that the factual basis come from the accused himself or that he be addressed personally. Ashby v. State, 297 Ark. 315, 761 S.W.2d 912 (1988); Flaherty v. State, 297 Ark. 198, 761 S.W.2d 167 (1988). Moreover, the factual basis can be supplied at a Rule 37 hearing. Knee v. State, 297 Ark. 346, 760 S.W.2d 874 (1988).

In Smith, supra, we held that a factual basis was established by the prosecutor’s recital of the underlying facts of the crime with which the defendant was charged and the defendant’s admission of guilt.

At the plea hearing in the case at bar, the following exchange occurred:

The Court: You’re charged with Aggravated Robbery, a Class Y Felony, and Theft of Property, a Class B Felony:
That on the 7th day of December 1987, you did unlawfully and feloniously and with the purpose of committing a theft and resisting apprehension immediately thereafter, did employ or threaten to employ physical force while armed with a deadly weapon.
Count II: Did unlawfully and feloniously take unauthorized control over property of more than twenty-five hundred dollars, belonging to another, with the purpose to deprive the true owner of the value thereof. Do you understand both charges?
Mr. Parks: Yes.
The Court: How do you plead to the charge of Aggravated Robbery, a Class Y Felony, and Theft of Property, a Class B Felony, guilty or not guilty?
Mr. Parks: Guilty.
The Court: Factual basis for the plea on both counts, Mr. Marquette (defense counsel)?
Mr. Marquette: Yes, Your Honor.
Mr. Evitts (prosecutor): Yes, there is, Your Honor. On December 7th, 1987, Mr. Parks entered a cafe at Natural Dam, Arkansas, and at shotgun point took a sum of money and some cigarettes from the owners of the cafe and subsequently left the cafe and took an automobile, which was parked in front of the cafe, and drove oif with it. He was apprehended some hours later.
The Court: Are you pleading guilty because you’re guilty as charged?
Parks: Yes.

At the Rule 37 hearing, one of the victims identified Parks as the person who robbed him at his cafe and stole a car belonging to a customer. Parks’ confession was also admitted into evidence.

We quickly dispose of Parks’ first contention that there was no factual basis in that the trial court was given the incorrect information that the victim of the robbery charge and the theft of property charge was the same person. At the Rule 37 hearing, Ransford Hopkins, the owner of the cafe that Parks robbed, testified that he was the victim of the aggravated robbery and that a customer was the victim of the theft of property. This cured any deficiency at the plea hearing.

Parks’ second assertion is that there was no factual basis established for his plea to theft of property in that the State did not prove that the value of the automobile stolen was $2500 or more. It has no merit. Granted, there was no proof by the State as to the automobile’s value. However, the State did not have an obligation to prove the automobile’s value or any other specific element of the oifense charged. What was required was that the underlying facts of the crime be recited and that the defendant admit his guilt. Smith, supra.

The trial judge advised Parks at the plea hearing that he was charged with theft of property with a value over $2500, and Parks indicated that he understood the charge and admitted that he was guilty. Both his counsel and the prosecuting attorney stated to the court that there was a factual basis for the plea, which was recited into the record by the prosecuting attorney. Parks again admitted he was guilty as charged.

At the Rule 37 hearing, Ransford Hopkins identified Parks as the person who robbed him and stole a customer’s automobile, and Parks’ confession was admitted into evidence. Moreover, neither Parks nor his counsel alleged below or allege on appeal that the value of the automobile was less than $2500. They merely describe the automobile as being in poor condition.

Under all of the circumstances, we find that a sufficient factual basis was established. See Smith, supra; Gibson v. State, 301 Ark. 44, 781 S.W.2d 469 (1989); Furr, supra; Ashby, supra.

Affirmed.

Dudley and Newbern, JJ., concur in part and dissent in part.

Price, J., not participating.

Robert H. Dudley, Justice, concurring in part; dissenting in part.

I wholly concur with that part of the majority opinion which denies relief on the plea of guilty for aggravated robbery. However, I dissent from that part which denies relief from the plea of guilty for theft of property having a value of $2,500.00 or more. I would order the trial court to set aside the guilty plea and give the appellant a trial on the charge of theft of property having a value of $2,500.00 or more. The reason is simple: a trial court “shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish a factual basis for the plea.” A.R.Cr.P. Rule 24.6. That was not done on this conviction.

A factual basis may be established either by addressing the accused, defense counsel, the prosecutor, or all three. Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988). The requirement of a factual basis for a plea does not require that the defendant be proven guilty, but merely that there is sufficient evidence from which the trial court can conclude that the defendant would be found guilty if he elected to proceed to trial. Knee v. State, 297 Ark. 346, 760 S.W.2d 874 (1988).

In this case the factual basis should have shown that appellant took unauthorized control over the property of someone else, with the intent to deprive that other person of his property, and that the property had a value of $2,500.00 or more. Ark. Code Ann. § 5-36-103 (Supp. 1989). As can be seen by reading the majority opinion, the value of the property was not discussed by either the accused, the defense counsel, or the prosecutor. Thus, a factual basis for the value of the property taken was not established.

The only mention of the value was by the judge when he read the charge and the appellant pleaded guilty. If the majority intends to hold this is sufficient, then mere arraignment of a defendant becomes sufficient, and the requirement by the Rules of Criminal Procedure for a factual basis has been eliminated. Such a holding in inappropriate. A.R.Cr.P. Rule 24.6 serves a valid purpose. See A.B.A. Standards for Criminal Justice, No. 14-16. Further, and most importantly, compliance with the rule would give finality to guilty pleas, and if anything ought to be clear-cut and final, it is a guilty plea. Accordingly, I dissent.

Newbern, J., joins in this dissent.


author: Robert H. Dudley, Justice.

text:
    Alvin LOVELACE v. STATE of Arkansas
    CA 89-226
    785 S.W.2d 212
    Supreme Court of Arkansas
    Opinion delivered March 12, 1990

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant, an habitual offender, was convicted of aggravated robbery in 1981 and sentenced to life imprisonment. We affirmed. Lovelace v. State, 276 Ark. 463, 637 S.W.2d 548 (1982). Since then appellant has filed numerous post-conviction motions in state and federal courts. In this one he argued below that the trial court applied the wrong procedure in his 1981 trial in determining the number of prior felony convictions in sentencing him. He concludes that his “illegal sentence” must be set aside. The trial court in this case correctly denied relief.

Ark. Code Ann. § 16-90-111 (1987) provides that a circuit court may correct an illegal sentence at any time, and may correct a sentence that is imposed in an illegal manner within 120 days after the sentence is imposed or within 120 days after the case is affirmed or dismissed on appeal. An illegal sentence is a sentence that is illegal on its face. Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). The sentence in this case is not illegal on its face. Accordingly, a motion to correct the sentence had to be filed within 120 days after the judgment of conviction was affirmed on appeal. The appellant filed his petition in this case over eight (8) years after his case was affirmed on appeal. It was not timely, and the trial court correctly denied relief.

Affirmed.

Price, J., not participating.


author: David Newbern, Justice.

text:
    Delbert Neil HELM, d/b/a Bill’s Green Light Auto Parts v. MID-AMERICA INDUSTRIES, INC.
    89-226
    785 S.W.2d 209
    Supreme Court of Arkansas
    Opinion delivered March 12, 1990
    [Rehearing denied April 16, 1990.]

      Rex Earl Starr, and Robinson, Staley & Marshall, by: Robert L. Robinson, Jr., for appellant.

      Thompson and Llewellyn, P.A., by: William P. Thompson and James M. Llewellyn, Jr., for appellee.
   David Newbern, Justice.

Delbert Neil Helm appeals from a judgment against him for $1,059,927.15 in favor of the appellee, Mid-America Industries, Inc. The judgment, which was based on a jury verdict, resulted from business dealings between the parties. Helm contends the Sebastian County Circuit Court lacked jurisdiction of him and was not the proper venue for the action. He also argues the court erred in proceeding with the action against him because it was already pending in a federal court in Oklahoma. Finally, he contends it was error to deny his motion for a continuance which he sought on the basis of illness of his counsel. Helm’s abstract is flagrantly deficient with respect to most of these points, but Mid-America has filed a supplementary abstract which will allow us to decide them, and we find they contain no merit. We, therefore, affirm the judgment.

Mid-America, a Delaware corporation, is a “Green Light” automobile parts wholesaler which has its principal place of business in Ft. Smith, Sebastian County, Arkansas. Helm is a resident of Oklahoma who operated parts stores in Oklahoma and Arkansas. Ed York, a Mid-America officer, testified about the circumstances which led to the business relationship between the corporation and Helm. Helm came to Ft. Smith and the Mid-America office in February, 1986, and announced to a Mid-America employee who received him there his intention to become a Green Light parts dealer. York was unavailable to speak to Helm just then, but he called Helm, and a week later, Helm returned to Ft. Smith with his brother and another person who was his comptroller. They were given a presentation by Mid-America on the Green Light store process. Several weeks later, Mid-America officials toured several of Helm’s stores in Oklahoma and Arkansas.

York testified that Helm’s stock consisted of “distressed” merchandise defined as merchandise sold at a loss, as in a fire sale. York told Helm he would expect Helm to dispose of the distressed type merchandise and not purchase any more of it for sale if he became a Green Light dealer. Helm said he would comply with that request. The alleged breach of this promise is a major element of the dispute which arose. Mid-America and Helm entered written agreements with respect to Helm’s stores at Talequah and Bartlesville, Oklahoma, and Siloam Springs, Arkansas.

From a document entitled “Third Agreed Pre-Trial Order” which was submitted to the United States District Court for the Eastern District of Oklahoma, and which Helm has given us as an appendix to his abstract, we learn additional facts. Helm filed the federal court action for breach of contract and commercial defamation, and Mid-America counter-claimed for money owed to it by Helm. The summaries of the pleadings in that action reveal that the relationship had grown to other stores. Helm experienced a cash flow problem and was unable to pay his account with Mid-America, and he contended that Mid-America had not properly credited him for merchandise it had agreed he could return and which it failed to pick up. Mid-America’s counter-claim was for the balance owed on Helm’s account.

The action in Sebastian County Circuit Court was filed by Mid-America subsequent to the initiation of the federal action by Helm. The federal court declined to enjoin the state proceeding, and the circuit court denied Helm’s motion to dismiss in favor of the federal action as well as his motion to dismiss for lack of personal jurisdiction and improper venue.

1. Jurisdiction in personam

Although it is argued that all of Helm’s Arkansas automobile parts stores were closed at the time this action was commenced, and Mid-America’s argument mentions that fact on another point, there is nothing abstracted to demonstrate it. Nor do we have any information as to the place where Helm was served with process, although Helm states in argument that he was served in Oklahoma. As far as we know, from the abstract of the record, Helm was still doing business with Mid-America in Arkansas when the action was filed. Even if that were not the case, however, we would have no trouble affirming the trial court’s determination that Helm was subject to its jurisdiction.

Arkansas Code Ann. § 16-4-101 c. 1. (a) (1987) provides that an Arkansas court may exercise jurisdiction of a person “who acts directly or by an agent” as to a claim “arising from the person’s . . . [transacting any business in this state.” The evidence surrounding Helm’s initiation of his relationship with Mid-America is probably sufficient to satisfy the requirement of the statute. If not, however, the fact that Helm operated a Store at Siloam Springs, at least from 1986 to 1988, which was responsible for some of the debt for which he was sued clearly satisfied it.

In Wisconsin Brick and Block Corp. v. Cole, 274 Ark. 121, 622 S.W.2d 192 (1981), we denied a writ of prohibition which had been sought to prevent an Arkansas court from assuming jurisdiction of a Wisconsin company. We held that the question of whether the company was “transacting business” in Arkansas was one of fact, and if the trial court erred in deciding that question we could correct it on appeal but not in response to a writ of prohibition. In the course of deciding that case, we noted that our long-arm statute, cited above, was meant to “permit courts to exercise the maximum personal jurisdiction allowable by due process, and the statute should be liberally construed.”

The only facts before us here show clearly that Mid-America’s claim arose directly, at least in part, from business transacted by Helm in Arkansas. In addition, his contacts with this state surpassed the minimum required by the Supreme Court interpretation of the United States Constitution in International Shoe v. Washington, 326 U.S. 310 (1945), and Helm could have foreseen he could be haled into a court in this state to answer claims arising from his activities here. See World-Wide Volkswagen Corp v. Woodsen, 444 U.S. 286 (1980).

The only case cited by Helm we need distinguish is Union National Bank v. Thornton, 293 Ark. 385, 738 S.W.2d 103 (1987), in which we held that the sending of monthly payments to an Arkansas bank was not a sufficient contact to satisfy the requirements of Ark. Code Ann. § 16-4-101 c. 1. (d) (1987) having to do with jurisdiction of nonresidents alleged to have committed torts in Arkansas. Obviously Helm’s acts in Arkansas were considerably in excess of sending his monthly payments to Mid-America.

2. Venue

Helm contends Mid-America’s action was one on an open account and thus the governing venue provision is Ark. Code Ann. § 16-60-111(a) (1987) which requires that it be brought in the county of the defendant’s residence at the time the claim arose. Mid-America contends it was an action on a contract and thus is properly brought against a nonresident in the county of the plaintiffs residence, Ark. Code Ann. § 16-60-109(a) (1987); Farmers Bank v. Fuqua Homes, Inc., 259 Ark. 38, 531 S.W.2d 23 (1975), which was Sebastian County.

While neither party has given us an abstract of the complaint in such a way as to show the nature of the action brought, Mid-America has abstracted its motion to amend the pleadings to conform to the proof along with the court’s order granting the motion. The proof abstracted which could be said to relate to this point consists of testimony showing that the dispute, at least in part, had to do with written and oral agreements between the parties with respect to at least three of Helm’s stores. In its argument, Mid-America has supplied quotations of the instructions showing that the case was submitted to the jury as a contract action.

While we have had some doubt about the matter, Helm, as the appellant objecting to venue, had the burden of demonstrating that venue was improper. Mack Trucks of Ark., Inc. v. Jet Asphalt and Rock Co., 246 Ark. 101, 437 S.W.2d 459 (1969). He has not shown that the action amounted to no more than one on an open account.

Helm has also made an argument that § 16-60-109 (a) is unconstitutional. We do not reach the issue because there is nothing to show that the argument was raised in the trial court. Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980).

3. Prior pending action

Helm contends Mid-America’s claim should have been dismissed because of the prior pending action in the federal court. There is no such requirement. Carter v. Owens-Illinois, Inc., 261 Ark. 728, 551 S.W.2d 209 (1977). Nor was there any requirement that the court exercise the forum non conveniens discretion given it by Ark. Code Ann. § 16-4-101(E) (1987). See Country Pride Foods Ltd. v. Medina, 279 Ark. 75, 648 S.W.2d 485 (1983); Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981); Grovey v. Washington, 196 Ark. 697, 119 S.W.2d 503 (1938). We find no error in the court’s refusal to dismiss.

4. Illness of counsel

Helm moved for a continuance of the trial, attaching an affidavit from a physician stating that Helm’s lead counsel was too ill to participate in a trial lasting more than one day. The motion was denied. Mid-America points out that the trial had been twice continued at the request of Helm.

In one of the cases cited by Helm on this point, we noted that whether to grant a continuance on the ground which was asserted in this case is within the sound discretion of the trial court. Missouri & North Arkansas Ry. Co. v. Robinson, 188 Ark. 334, 65 S.W.2d 546 (1933). Also cited is Haislip v. Taylor, 209 Ark. 510, 190 S.W.2d 982 (1945), where we found an abuse of discretion where a party was made to go to trial only two days after a complaint was filed and given only three hours to search for witnesses. We cannot say Helm suffered any comparable hardship. While one of the two Oklahoma lawyers representing him in this case was suspended from practice and the other was ill, there has been no showing that the Arkansas attorney with whom they were associated could not have taken up the slack. We decline to hold the court abused its discretion.

Affirmed.

Price, J., not participating.


text:
    Robert M. REDDISH v. Scott B. GOSELAND, et al.
    89-277
    785 S.W.2d 205
    Supreme Court of Arkansas
    Opinion delivered March 12, 1990

      Harper & Blocker, by: Jeff C. Harper, for appellants.

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: James A. Arnold II, for appellees Scott B. Goseland and Northwest Arkansas Truck & Equipment, Inc.

      Roy & Lambert, for appellee Doyle Sisson.
   David Newbern, Justice.

This is a negligence case in which the jury found in favor of the defendants. The plaintiffs were Marvin Reddish, his wife Mary, and their son Jason. The Reddishes contend the trial court erred in failing to grant their motion for a new trial. We hold there was substantial evidence to support the verdict, and thus the decision is affirmed.

The defendants, now appellees, were Scott B. Goseland, his employer, Northwest Arkansas Truck & Equipment, Inc., and Doyle Sisson. Sisson was driving his truck, loaded with used batteries, from Huntsville to Springdale. The truck lost power, and he pulled off on a shoulder. He walked around the truck and got under it to try to determine what was wrong, but he found nothing. He saw no leaking seals or other evidence of malfunction. He felt no heat except that from the muffler. He had thought there had been trouble with his clutch earlier. When he got back in the cab, the clutch seemed normal, but the truck would not move under its own power. Sisson called Northwest and spoke to dispatcher Randy Tyree who sent Goseland to Sisson’s aid. Sisson told Tyree and Goseland he thought the problem was that his clutch was out.

Goseland, an experienced wrecker driver, looked the truck over with Sisson and could find no visible defect. He hooked Sisson’s truck onto his wrecker so that Sisson’s truck would be towed from its front. Goseland, Sisson, and Sisson’s son got in the wrecker cab for the tow. At first Sisson’s truck resisted being towed. They again got out and inspected Sisson’s truck, thinking perhaps there was a rock blocking one of the wheels. They found nothing and tried again. This time, the truck moved without difficulty. Goseland checked to assure that the rear wheels of Sisson’s truck were turning.

After they had proceeded about two and a half miles, Sisson noticed there was smoke at the rear of his truck. He told Goseland who immediately began slowing and looking for a place to pull over. Sisson looked again, and sparks were coming off the truck too. About that time, the rear axle on Sisson’s truck separated, and a dual wheel set came off. The time elapsed from the first notice of the smoke until Goseland was able to stop was 45 seconds to one minute during which time they covered some 1200 to 1500 feet. The detached wheels rolled into the front of a truck coming from the opposite direction being driven by Mr. Reddish. Goseland pulled onto the shoulder when he found a place where the truck and tow would be off the highway. It was later determined that bearings had gone out, and the axle on Sisson’s truck had burned in two. The state trooper who investigated the accident testified he could not think of a way the accident could have been avoided. There was no objection to this testimony.

The Reddishes sought $380,000 for their personal injuries, property damages, and Mrs. Reddish’s loss of consortium. They alleged that Sisson and Goseland were both negligent in the maintenance, inspection, and towing of the truck. No evidence of improper or negligent maintenance was presented.

There was one conflict in the evidence. Sisson testified that he told Tyree that he had heard a loud popping noise before his truck began to lose power. He also testified he told Goseland about the noise. Tyree testified he did not recall being told about the popping noise, and he could not recall for sure whether he told Goseland about any such noise. Goseland testified that the first he heard about the popping noise was after the accident had occurred. He said had he known of it earlier, he would still have towed Sisson’s truck from the front because it would not have been safe for him to have hooked it from the rear due to its position on the shoulder where Sisson had parked it. He said he would have towed it to a place where he could have detached it and then hooked on to the rear for the remainder of the tow.

A trial court may grant a motion for a new trial if the jury verdict is clearly against the preponderance of the evidence. Ark. R. Civ. P. 59(a)(6). If the motion is denied, the standard of review is whether the jury verdict is supported by substantial evidence. Johnson v. Cross, 281 Ark. 146, 661 S.W.2d 386 (1983); Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982). The Reddishes argue that if Sisson did not tell Goseland about the popping noise, then he must have been negligent. If Sisson did tell Goseland about it, then Goseland must have been negligent in not towing the truck from the rear.

The jury’s verdict was taken on two simple interrogatories. The first asked if Goseland had been negligent. The second asked if Sisson had been negligent. The unanimous answer to each was negative. We do not know the facts accepted by the jury. The evidence, however, was sufficient to support a conclusion that, for example, Sisson thought he had told Goseland about the noise, but did not. In that event, given his supposition that he was having clutch problems, it would not necessarily have been negligence for him to fail to tell Goseland or his dispatcher about the noise, and in that event, there would have been no negligence on the part of Goseland either.

Given the evidence of the care exercised at the scene by both Sisson and Goseland, we cannot say there was no substantial evidence to support the jury’s determination that neither was negligent.

The Reddishes also argue negligence was shown in the distance travelled after the smoke was first sighted. Again, we see no reason the jury should necessarily have found negligence. From Goseland’s testimony the jury could readily have inferred he took the first opportunity to get his truck and Sisson’s off the road after learning of the danger.

Affirmed.

Price, J., not participating.


text:
    Tyrone JONES v. STATE of Arkansas
    CR 89-198
    785 S.W.2d 218
    Supreme Court of Arkansas
    Opinion delivered March 12, 1990

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

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

The appellant, Tyrone Jones, was convicted of the crime of aggravated robbery, a class Y felony, and was sentenced to forty years imprisonment. The trial court ordered the sentence to run consecutively with previous consecutive sentences of life imprisonment and thirty-seven years.

Two issues are raised as grounds for reversal. First, the appellant contends that he should receive credit against his sentence for time spent in confinement while awaiting trial. Because we are reversing on the other issue, it is unnecessary for us to address that question. However, in a companion case decided today, Jones v. State, 301 Ark. 510, 785 S.W.2d 217 (1990), that issue is fully discussed; there, the appellant was credited with jail-time while incarcerated awaiting trial on those charges and the charges here. The holding in that case applies as well here.

For his second point for reversal, the appellant objects to two gratuitous comments made by the trial judge in the course of jury voir dire. He contends that the remarks were inappropriate and so prejudicial in character that a mistrial should have been declared. We agree.

After the twelve prospective jurors were seated, the following transpired:

PROSPECTIVE JUROR: There’s one thing I should say, I was a victim of a crime in March. My car was broken into in my driveway, but as far as I am concerned it wouldn’t have any bearing on my decision today, but I thought I should tell you this.
COUNSEL FOR STATE: I appreciate it. Was some resolution achieved in that case or is it still —
PROSPECTIVE JUROR: It’s still pending. Nothing was — personal items were taken, credit cards and —
COUNSEL FOR STATE: I see. Is there anything about that particular incident that makes you uncomfortable about being here today for this one?
PROSPECTIVE JUROR: No, sir.
Hi * *
COUNSEL FOR DEFENDANT: Thank you, your Honor. I’ll ask you all the same questions I have asked everybody. Would any of your answers be different than the answers given by the other jurors to my questions? Mr. Dunn, I appreciate your candor on that one issue. Were you a witness in this case?
PROSPECTIVE JUROR: My particular —
COUNSEL FOR DEFENDANT: Yes, sir.
PROSPECTIVE JUROR: There’s nothing that will solve this case.
COUNSEL FOR DEFENDANT: But you weren’t an eyewitness?
PROSPECTIVE JUROR: No. It happened in the night and my car was in my driveway and I discovered it the next morning.
COUNSEL FOR DEFENDANT? Okay. And you would be able to set that aside and hear the case today?
PROSPECTIVE JUROR: Yes, sir.
COUNSEL FOR DEFENDANT: Okay. Anything else from anybody else? Thank you very much.
THE COURT: Thank you . . . [Addressing the prospective juror] Did you read in the paper the other day someone got shot breaking in a car?
PROSPECTIVE JUROR: Yes, sir, I did.
THE COURT: Attorney General tells me that’s against the law. I don’t think it is.
PROSPECTIVE JUROR: I agree with you.
THE COURT: I think the Attorney General says you are supposed to say “Stop” and if he doesn’t (sic) stop you let them go. If you tell them to stop and they don’t stop, you shoot them.
PROSPECTIVE JUROR: My car sits right out of my bedroom, and I can just look right out and see my car. Whoever did it was awfully quiet.
THE COURT: It’s a shame. How many here would convict someone of shooting somebody getting in their car? You think you would convict someone who did that?
PROSPECTIVE JUROR: Could or would?
THE COURT: Convict someone? Find them guilty of battery or something like that.
PROSPECTIVE JUROR: I think I would.
THE COURT: No, no. If you shot someone, like take this fellow over here. The paper said they hadn’t decided whether or not to bring charges. And he was brought here to court and he’s the defendant and he gets up here and testifies that, “I shot, fired a warning shot, and that fellow started running off and I shot him in the rear with a .22.” How many of you would find him guilty? Any of you find him guilty? I wouldn’t. I’ll probably get in a lot of trouble for saying that.
* * *
COUNSEL FOR DEFENDANT: Your Honor, I’ve got kind of a problem with the conversation regarding how —
THE COURT: Oh, you want to move for a mistrial?
COUNSEL FOR DEFENDANT: Yes, sir. I think I will.
THE COURT: Well, good. It’s denied.

We hold that these comments, made by the trial court to prospective jurors as they were questioned and being qualified to try a case of aggravated robbery, constitute error per se. We have consistently acknowledged the great influence that a trial judge has on jurors. He must, therefore, refrain from impatient remarks or unnecessary comments which might indicate his personal feelings or which might tend to influence the minds of jurors to the prejudice of a litigant. See Oglesby v. State, 299 Ark. 403, 773 S.W.2d 443 (1989).

The trial judge is the one person who controls the conduct of all participants in the course of a trial, from beginning to end, and instructs the jury regarding the law which must be applied to the facts. Hence, a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Chapman v. State, 257 Ark. 415, 516 S.W.2d 598 (1974).

In the present case, the appellant made a timely motion for a mistrial. Though mistrial is a drastic remedy, if justice cannot be served by continuing, it is nevertheless an appropriate remedy. Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983).

Reversed and remanded.

Price, J., not participating.


text:
    Larry BURGE v. Odus PACK
    89-293
    785 S.W.2d 207
    Supreme Court of Arkansas
    Opinion delivered March 12, 1990

      Ron Bruno, P.A., for appellant.

      Rowland & Templeton, by; Randell Templeton, for appellee.
   Tom Glaze, Justice.

This case involves certain money lending transactions between two pawn shop owners, Larry Burge and Odus Pack. The primary issues argued in this appeal concern whether the men’s transactions involved simple loans between them, as Pack suggests, or whether the two men were involved in a joint venture, which is the contention of Burge. Burge argues alternatively that if no joint venture existed, the loans Pack provided Burge were usurious. The trial court found and entered judgment in favor of Pack. We affirm that decision.

The specific transaction that led to this litigation concerned two checks Pack delivered to Burge. One check was for $5,000 and the other was for $6,500. Pack claims that these checks represented loans to Burge and that in return, Burge gave Pack two checks bearing the maturity dates of the loans. The check amounts, including principal and interest, were calculated to the date of maturity and totaled $ 14,30o. Pack states that after the loans matured, he attempted to negotiate the checks but the bank dishonored them.

Burge’s version concerning the checks is that he and Pack were involved in a joint venture to loan money to third persons, who would offer their real property as security for the loans. Burge claims that he was to provide the “know how” in this venture because he had the real estate license and property experience; Pack was to supply the money. Burge says he and Pack were to split the proceeds resulting from the third-party transactions. He further contends that the checks given Pack were written merely to protect Pack’s interest in the profits of the joint venture and were to be cashed only in the event Burge died. Burge asserts Pack violated the parties’ agreement when he tried to negotiate Burge’s checks. Pack then brought this suit to collect the face amount of the checks, totalling $14,300, and Burge answered, denying he owned any loan amounts to Pack. Burge also counterclaimed, stating he was damaged in the sum of $50,000 because of Pack’s breach of the parties’ joint venture agreement.

In claiming he and Pack were involved in a joint venture, Burge had the burden of showing such a business relationship existed between them. See 46 Am. Jur. 2d, Joint Ventures, § 69 (1969). In Tackett v. Gilmer, 254 Ark. 689, 496 S.W.2d 368 (1973), this court stated that in order for a business enterprise to constitute a joint venture, the following elements must be present: (1) two or more persons combine in a joint business enterprise for their mutual benefit; (2) right of mutual control or management of the venture; and (3) an expressed or implied understanding that they are to share in the profits or losses of the venture. See also 46 Am. Jur. 2d, Joint Ventures, § 7 (1969).

When considering the joint venture issue, the trial court was confronted with a swearing match between the parties and their respective witnesses. Although Burge and his witnesses testified in support of Burge’s claim that he and Pack had entered into the business of funding real estate loans by the use of promissory notes and deeds, no proof was offered that showed Pack was named in any of the documents involving these third-party transactions. Nor was there evidence presented showing Pack had the right to the mutual control or management of any of these third-party property deals. In fact, Burge admitted there were no records or documents reflecting any formal arrangement between him and Pack.

Pack, on the other hand, introduced carbon copies of the two checks he gave to Burge and the copies reflect the purpose of the checks were for loans to Burge. Patsy Lochridge, Pack’s employee, testified that she made the checks out to Burge, and she understood the checks reflected loans made to Burge by Pack.

When considering the conflicting testimony as well as the prominent lack of documentary evidence that any joint venture existed between the parties, we cannot say the trial court was clearly wrong in rejecting Burge’s claim that he and Pack were in business. To the contrary, strong evidence was introduced that Pack’s involvement in these matters concerned loans to Burge for which Pack would be compensated in income from the interest accruing on those loans. The trial court obviously believed Pack’s account that he loaned Burge money at 10% interest and that Burge defaulted on the loans.

In this appeal, Burge alternatively argues that, if the court affirms the trial court’s finding that loan transactions were entered into between the parties rather than a joint venture, the loan agreement was usurious. Burge, however, failed to raise this issue below in a proper or timely manner.

Usury is an affirmative defense that must be pleaded and established. See Dreyfus Co. v. Tim Wargo & Sons, Inc., 282 Ark. 468, 668 S.W.2d 957 (1984); Seaboard Finance Co. v. Wright, 223 Ark. 351, 266 S.W.2d 70 (1954). Under ARCP Rule 8(c), in responding to a complaint,. a party shall set forth affirmatively any matter constituting an affirmative defense. Burge’s amended answer and counterclaim failed to set forth the affirmative defense of usury. Also, while there was some testimony by Pack on cross examination regarding the interest rate charged on the loans, Burge never moved to conform his pleadings to the evidence in accordance with ARCP Rule 15(b). See Brooks v. Town & Country Mut. Ins. Co., 294 Ark. 173, 741 S.W.2d 264 (1987). Although Burge made a belated attempt to raise the usury question in his motion for a new trial, such a motion cannot be used to bring into the record that which does not appear of record. Sharp Co. v. Northeast Ark. Plng. & Cnsltg., 269 Ark. 336, 602 S.W.2d 627 (1980). Because the usury issue was not properly pled or timely raised below, we do not consider it on appeal.

For the reasons given above, we affirm.

Price, J., not participating.

       Apparently these loans had been extended by replacement of Burge’s two original checks with others.

       We note Burge’s reference to Pack’s income tax return reporting interest from seller-financed mortgages listing Burge’s name, but we do not find this evidence corroborative of the joint venture argument. Pack’s returns made no reference to a joint venture or partnership.


author: Per Curiam.

text:
    IN THE MATTER OF THE TERMINATION OF PARENTAL RIGHTS AND APPOINTMENT OF A GUARDIAN FOR Christina Marie HUTTON and Lisa Ann Hutton, Minors Said Guardian to have Authority to Consent to Adoption Without Notice to or Consent of the Natural Parent or Parents Charlene Diane Hutton, Mother David Edward Hutton, Father
    88-274
    785 S.W.2d 33
    Supreme Court of Arkansas
    Opinion delivered March 12, 1990

      Williams, Schrantz & Wood, P.A., by: Stephen Lee Wood, for petitioners Charlene Diane Hutton and David Edward Hutton.

      Dianne C. Boyd, Asst. Gen. Counsel, Arkansas Dep’t of Human Services, for respondent.
   Per Curiam.

On July 29,1988, the Benton County Probate Court entered an order finding that custody of the petitioners’ children should continue with the Department of Human Services for foster care placement and that Human Services should proceed with a petition for guardianship with authority to consent to adoption. Petitioners appealed to this court, and on September 12, 1988, we granted petitioners’ motion to proceed in forma pauperis and ordered that the transcript be furnished at the State’s expense.

On March 20,1989, we reversed the decision of the probate court and remanded the case for further proceedings. According to the petitioners, a hearing was held on October 10,1989, in the Benton County Chancery Court, and on January 2, 1990, the court ordered that the petitioners’ children be taken from them and placed for adoption in a suitable home, or placed in long term foster care until an adoptive home could be found.

Petitioners appeal the court’s decision and make a motion for leave to proceed in forma pauperis, for filing fees, for costs for transcription of the October 10,1989, hearing, and for attorney’s fees as allowed under Ark. Code Ann. § 9-27-316 (Supp. 1989). To be consistent with our action taken in the first appeal, we grant the motion for leave to proceed in forma pauperis and for filing fees and order the State to pay costs of transcription. However, we remand for a determination by the trial court as to the petitioners’ entitlement to attorney’s fees from the Juvenile Court Representation Fund as prescribed by Ark. Code Ann. § 9-27-316 (Supp. 1989).

Price, J., not participating.


text:
    Linda Carolina BRIMER v. STATE of Arkansas
    CR 89-237
    785 S.W.2d 458
    Supreme Court of Arkansas
    Opinion delivered March 19, 1990

      Donald R. Huffman, Public Defender, by: C. J. Hardcastle, for appellant.

      Steve Clark, Att’y Gen., by: John David Harris, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

This is a second appeal of this case. The appellant, Linda Brimer, was employed as a bookkeeper by Mary Morgan and her husband, Dr. Benjamin Spock, from 1982 to 1984. During that time appellant misappropriated a large sum of her employers’ money; the prosecutor said it was a little over $138,000.00, and she said it was considerably less. She pleaded guilty to theft of property, a Class C felony. On January 12, 1987, the trial court sentenced her to six (6) years in prison, with two (2) years of the sentence suspended provided she made restitution of $135,000, payable over a twelve-year period. The beginning payments were to be $200.00 per month. Appellant appealed the judgment, but apparently did not make an appeal bond because she served fifteen (15) months in the penitentiary and made $200.00 payments to the clerk of the trial court in January, February, and March of 1988. On April 5, 1988, the $600.00 which she had paid to the county clerk was paid by the clerk to the victims. On March 14, 1988, we reversed and remanded the judgment because (a) the maximum sentence for the Class C felony was ten (10) years and the trial court made the period of restitution run over a twelve (12) year period, and (b) the appellant was not allowed to offer testimony about the amount she owed. Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988).

By order dated October 24, 1988, the appellant was resentenced to (a) ten (10) years suspended imposition of sentence, (b) $20,000.00 in restitution, payable at the rate of $100.00 per month for one year, $200.00 per month through December 1996, and the balance due before January 1, 1997, and (c) entry of a civil judgment in favor of Benjamin Spock and Mary Morgan in the amount of $83,000.00. In short, aside from the prison term, the resentencing amounted to an order of restitution and a civil judgment totaling $ 103,000.00 while the original order of restitution had been for $135,000.00. The appellant did not appeal from this second sentence. It became a final judgment.

Over the next six (6) months, the appellant did not make the first six (6) payments of $100.00 due each month under the order of restitution and did not make any payments on the $83,000.00 civil judgment. The prosecutor filed a petition to revoke appellant’s suspended imposition of sentence, and Spock and Morgan sought to garnish appellant’s wages. The trial court set a hearing on the petition to revoke. Appellant did not file any pleadings in either action.

At the revocation hearing no witnesses were heard. The attorneys agreed no payments had been made under the second order of restitution. The appellant’s attorney argued that she was entitled to six (6) months credit for the $600.00 paid under the first, or reversed, order of restitution, and the State’s attorney argued that $600.00 was expressly considered in the agreement to reduce the judgments from $135,000.00 to $103,000.00. In its findings the trial court held in accordance with the State’s argument, but stated that appellant was legitimately confused over the matter and refused to revoke the suspension of imposition of sentence. Even though the suspension was not revoked, the appellant appeals claiming she is entitled to the $600.00 credit.

Jeopardy has attached on the issue of revocation of sentence for failure to pay the $600.00, and appellant has prevailed on that issue. Thus, she has nothing to appeal on that count. In this appeal, she attempts to appeal only as to lack of a credit on the order of restitution. In doing so, she questions the $20,000.00 restitution contained in the court’s earlier order dated October 24, 1988, and now argues, in effect, that she owed only $19,400.00 when the October 24 order was entered. Having failed to appeal from that earlier order, appellant is precluded from challenging the restitution amount in this revocation proceeding.

The trial court’s oral ruling on the $600.00 is interlocutory in nature. It is not at all a final enforceable order for a definite sum of money. It did not dismiss or end the order of restitution, or conclude either party’s rights in the matter. It is not an appealable order under Rule 2 of the Rules of Appellate Procedure.

Appellant next argues the trial court erred in allowing garnishment by the judgment creditors. The matter was not preserved for appeal.

As previously set out Spock and Morgan held a civil judgment against appellant in the amount of $83,000.00. They caused a writ of garnishment to issue against appellant’s employer on March 2,1988. The “Notice to Defendant” required by Ark. Code Ann. § 16-110-402(1)(A) (Supp. 1989) may not have been attached to the writ. Appellant did not file any type of pleading asking that the writ be quashed for failure to attach the notice. The garnishee paid $112.25 into the registry of the court. On March 23,1989, the trial court ordered the money paid over to Spock and Morgan. Twelve (12) days laters, on April 4, appellant’s counsel, in a post-trial letter brief about the revocation issue, mentioned for the first time that the proper notice was not attached to the writ. If the trial court was even aware of the argument, he did not rule on it as the writ had been issued and returned, and the proceeds from it ordered paid over to the judgment creditors. Thus, the matter was not preserved for appeal.

Affirmed in part and dismissed in part.

Price, J., not participating.


text:
    Kevin BURKHART v. STATE of Arkansas
    CR 89-179
    785 S.W.2d 460
    Supreme Court of Arkansas
    Opinion delivered March 19, 1990

      Osmon Law Firm, by: Kerry D. Chism; and Wilbur Law Firm, by: Norman C. Wilbur, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Kevin Burkhart states four points for reversal of his conviction of capital murder for which he was sentenced to life imprisonment without parole. He contends a mistrial should have been declared when the prosecutor referred to another homicide in opening statement. We find the statement was barely, if at all, prejudicial and not a sufficient basis for mistrial. He argues the court erred in not suppressing evidence based on an involuntary statement given by Alvin Edward Morris who was tried separately for his participation in the crime. We hold Burkhart lacked standing to question possible violation of Morris’s constitutional rights. Burkhart also contends it was error to admit Morris’s testimony to the effect that Morris had been convicted of the crime and sentenced to life without parole. Because the basis of objection argued on appeal was not raised in the trial court, we decline to review it. Finally, Burkhart contends it was error to admit certain photographs of the crime scene which were unnecessarily inflammatory and duplicative. We cannot reach the point fully, as we have been furnished only black and white versions of the pictures made on a photocopy machine rather than originals or copies of what we presume to have been the color photographs admitted at trial. To the extent we can tell what was in the pictures admitted as exhibits, we find nothing unfairly prejudicial. The conviction is affirmed.

Kevin Burkhart and Eddie Morris, young men high on marijuana, walked into the Mountain Home residence of an elderly couple, Victor and Minnie Magnus, beat and kicked them to death, stole their money, and went to Alabama. Kevin’s brother, to whom the two described their crime, turned them in. Morris was tried first and convicted. He testified at Burkhart’s trial and told of how the two had planned to rob but not kill the victims and that the idea was Burkhart’s.

1. Opening statement

At the outset of his opening statement the prosecutor apologized to the jury for being “discombobulated” as a result of having just received word of the commission of another homicide which had occurred in another county in his district. Burkhart’s counsel objected on the ground that the remark was immaterial and prejudiced the jury. He asked for a mistrial and alternatively that the prosecutor be admonished. The mistrial motion was denied, and the prosecutor was not admonished.

A mistrial is to be granted only where an admonition to the jury would not be sufficient to remove the unfair prejudice which may have resulted from the event in question. Wheat v. State, 295 Ark. 178, 747 S.W.2d 112 (1988). If there is no request that the jury be admonished it is not error to fail to do so. Vaughn v. State, 289 Ark. 31, 709 S.W.2d 73 (1983). The unfair prejudice, if any, resulting from the prosecutor’s remark was not so drastic as to warrant a mistrial, and there was no request that' the jury be admonished.

2. The tennis shoe

Tennis shoes discarded after the crime were found by the police as a result of in-custody statements given by Burkhart and Morris. The state sought to introduce one of the shoes as one which made tracks at the scene of the crime. The state did not introduce Burkhart’s statement. Burkhart objected to introduction of the tennis shoe as an exhibit on the ground that Morris’s statement had not been voluntary and the shoe should be excluded because it would not have been found but for Morris’s statement. He contends it was fruit of the poisonous tree and its admission violated his Fourth Amendment rights, citing Wong Sun v. United States, 371 U.S. 471 (1963).

Fourth Amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128 (1978). Evidence is not to be excluded unless the admission of it would violate the constitutional rights of the defendant on trial as opposed to the rights of some other person. United States v. Payner, 447 U.S. 727 (1980).

3. Morris’s sentence

Except for some objections about leading questions, there was no objection to Morris’s testimony, upon direct examination by the prosecutor, in which he detailed the events of the crime and his feelings about having participated. However, when he was asked about the sentence he had received an objection was made. Burkhart’s counsel stated to the court only that Morris’s testimony that he had received life without parole was “irrelevant” and “highly prejudicial.” The prosecutor responded that he had thought Burkhart would want the jury to have that information.

In his brief on appeal Burkhart argues that the testimony violated his right to equal protection of the laws because, had Burkhart been tried first, Morris would not have felt free to testify against him. This constitutional argument was not presented to the trial court. To have it considered on appeal, even a constitutional argument must have been made at the trial. See Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984), which also involved raising an equal protection argument on appeal which had not been stated as a basis of objection at trial. The ground for objection may not be changed on appeal to one which was not raised at trial, as we will not consider an objection raised for the first time on appeal. Hegwood v. State, 297 Ark. 218, 760 S.W.2d 859 (1988); Hart v. State, 296 Ark. 290, 756 S.W.2d 451 (1988).

4. The photographs

Relying primarily on Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), Burkhart complains that the photographs of the crime scene were so gory and duplicative that he was unfairly prejudiced because of the inflammatory effect of the pictures on the jury. It is impossible for us to address this question fully because the record contains only machine photocopied black and white reproductions of the pictures. We cannot see the details of which Burkhart complains, such as blood on the objects depicted, because the pictures are not in color. We do not know whether the original photographs were “gory” or not.

While some of the pictures are very similar, such as two taken of Mrs. Magnus’s body from different angles, all of them depict the crime scene. They do not give rise to reversible error as did those in the-Berry case in which autopsy pictures introduced by the prosecution were found by this court to have been highly objectionable.

5. Other error

We have examined all of the objections raised by Burkhart pursuant to Arkansas Supreme Court and Court of Appeals Rule 11(f), and we find no prejudicial error.

Affirmed.

Price, J., not participating.