text:
    Hoyt Franklin CLINES, James William HOLMES, Darryl V. RICHLEY and Michael Ray ORNDORFF v. STATE of Arkansas
    CR 82-54
    669 S.W.2d 883
    Supreme Court of Arkansas
    Opinion delivered May 29, 1984

      Marshall N. Carlisle, for appellant Holmes.

      Matthew Horan, for appellant Richley.

      Priscilla Karen Pope, for appellant Orndorff.

      Charles E. Hanks, for appellant Clines.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Dep. Atty. Gen., for appellee.
   Per Curiam.

The four petitioners were jointly tried and found guilty of the capital murder of Don Lehman and the aggravated robbery of his wife and daughter. We affirmed. Clines, Holmes, Richley and Orndorff v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied,_U.S__, 104 S.Ct. 1328 (1984). The petitioners have now filed a petition for relief pursuant to our postconviction rule, Rule 37.

Petitioners first allege that A.R.Cr.P. Rule 22 which gives discretion to the trial court to try defendants jointly in a capital case unconstitutionally repealed Initiated Act I of 1937. Act I entitled co-defendants in capital cases to separate trials as a matter of right. Rule 22 was promulgated pursuant to Act 470 of 1971, which was adopted unanimously by the General Assembly and “in harmony with the Court’s constitutional superintending control over all trial courts.” In Re Arkansas Criminal Code Revision Commission, 259 Ark. 863, 530 S.W.2d 672 (1975). Petitioners contend that counsel was ineffective in failing to raise the severance issue on this ground even though counsel did ask for a severance and further raised the issue of denial of severance on appeal. Petitioners base their allegation on Amendment 7 to the Arkansas Constitution which provides:

No measure approved by a vote of the people shall be amended or repealed by the General Assembly or by any City Council, except upon a yea and nay vote on roll call, of two-thirds of all the members elected to each house of the General Assembly, or of the City Council, as the case may be.

It is true that Act 470 of 1971 (Ark. Stat. Ann. § 22-242) which allowed adoption of rules of criminal procedure had the effect of repealing some provisions which had been enacted by initiated acts. It is also true that when Act 470 was passed, the legislators could not know which initiated acts would eventually be replaced. We further agree that Act 470 in conjunction with this court’s power to promulgate rules of procedure had the effect of denying petitioners separate trials. Nevertheless, while there is a serious question as to whether Initiated Act I was constitutionally repealed by Rule 22, we need not reach that question here because petitioners waived the issue by not raising it at trial and on appeal. No issue, even if it presents a question of constitutional dimension, is preserved beyond direct appeal unless it is of such fundamental nature that the judgment would be rendered void. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). Such fundamental questions are few. Lack of jurisdiction is sufficient to void a judgment; as is a conviction obtained in violation of the provisions against double jeopardy. See Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982). The repeal of an initiated act by means of a vote of the legislature allowing the adoption of nonspecific rules of criminal procedure, however, does not void judgments in cases tried under the adopted rules of procedure. Moreover, the trial court’s denial of the petitioner’s motion for severance on the grounds advanced at trial and considered on appeal is also unavailable to petitioners as a basis for postconviction relief. Grounds raised on appeal are exhausted and cannot be reargued under Rule 37. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983). If criminal cases are to have finality, it must be recognized that a fair trial and a full consideration of asserted error on appeal are the means by which the majority of issues are finally settled. Challenges which are not made at trial or on appeal in accordance with the controlling rules of procedure are waived. Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied, 453 U.S. 973 (1981). Postconviction relief is limited to grounds sufficient to void the judgment or open it to collateral attack.

Petitioners have attempted to collaterally attack their judgments on the basis of ineffective assistance of counsel, alleging that counsel was ineffective for failing to raise the-severance issue on the grounds that Rule 22 unconstitutionally repealed Act I of 1937; but to establish ineffective assistance of counsel, a petitioner must first show that he was prejudiced by the conduct of counsel. Strickland v. Washington,_U.S__, 104 S.Ct. 2052 (1984). On appeal, the issue of whether petitioners were prejudiced by the denial of the motion for severance was considered and decided adversely to them. Petitioners failed to demonstrate on appeal that the jury was unable to fairly distinguish between them in the guilt and penalty phases of the trial. As we said on appeal, the facts before the jury indicated that the blame for Mr. Lehman’s murder rested with near equality on all four petitioners. The safeguards in our law whereby capital defendants are tried and sentenced are intended to prevent the arbitrary and capricious imposition of the death penalty. The death penalty in this case was not capriciously or arbitrarily imposed. As petitioners have failed to establish that severance was necessary to protect their right to a fair trial at any stage of the proceedings, their sentences will not be disturbed.

Petitioners also allege that the prosecutor failed to comply with discovery provisions and that the capital murder statute is unconstitutional in that (1) individual culpability is not taken into account, and (2) it is improper to place the burden on a co-defendant to prove that he did not himself commit the murder. Since each of these allegations could have been raised at trial and on appeal on the grounds stated in this petition and is not sufficient to render the judgment void, they must be considered waived. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981).

Finally, the petitioners state that the last eleven allegations contained in the petition were raised on appeal. They adopt the arguments raised at that time, but the issues are not cognizable under Rule 37 because the issues have already been decided on appeal. Neal v. State.

Petition denied.

Dudley and Hollingsworth, JJ., would grant.


source: Caselaw Access Project

author: Richard B. Adkisson, Chief Justice.

license: Public Domain

text:
    AMERICAN FIDELITY FIRE INSURANCE CO. v. KENNEDY BROS. CONSTRUCTION, INC.
    84-20
    670 S.W.2d 798
    Supreme Court of Arkansas
    Opinion delivered June 4, 1984

      Grace, Napper, Allen ir East, for appellant.

      Shaver, Shaver ir Smith, by: TomB. Smith, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellee, Kennedy Brothers Construction; Inc., hereinafter Kennedy, submitted a bid to the U.S. Army Corps of Engineers on the Haleside Rectification Project in Lee County. Kennedy, with its bid, submitted a surety bond issued by appellant, American Fidelity Fire Insurance Company. Although appellee was the lowest bidder for the job, the U.S. Army Corps of Engineers found the surety bond to be improper and awarded the construction job to the next highest bidder. Kennedy brought suit against appellant for negligent performance of its contract. The jury returned a verdict for Kennedy in the amount of $64,407.00 for lost profits. On appeal appellant argues that evidence of lost profits was speculative and insufficient to support the jury’s verdict. We affirm.

Lost profits must be proven by evidence which makes it reasonably certain the profits would have been made had the other party carried out his contract. Black v. Hogsett, 145 Ark. 178, 224 S.W.2d 439 (1920); Reed v. Williams, 247 Ark. 314, 445 S.W.2d 90 (1969). “When a party embarks on the enterprise of recovering anticipated profits, he must present a reasonably complete set of figures, and not leave the j ury to speculate as to whether there could have been any profits.” Sumlin v. Woodson, 211 Ark. 214, 199 S.W.2d 936 (1947).

Appellant argues that Kennedy’s estimates regarding the length of time it would take to complete the project rested on speculation and conjecture. Appellant contends Kennedy could not have completed the work in the allotted time because the notice to proceed was not actually issued until almost two months after the projected beginning date. However, Kennedy testified that he would have accelerated the necessary paperwork in order to obtain the notice to proceed by September 1. Kennedy further testified he would have moved his equipment, located less than sixty miles from the job site, before the notice to proceed was issued, which would have enabled him to begin work immediately. Appellant’s argument that Kennedy could not have completed the project because of bad weather is not well founded because appellant has failed to recognize the likelihood of Kennedy’s earlier beginning date.

Appellant further argues that the Kennedy estimate was based upon speculation and conjecture because its figures were incomplete. Kennedy, however, submitted the direct testimony of the two Kennedy brothers who each had twenty years experience in the earth-moving contracting business along with the testimony of a witness with lifetime experience in the earth-moving business and another witness with lifetime experience in heavy equipment use and operation. These witnesses testified the job could have been done for $216,580.00, could have been completed within the contract time, and could have been completed by Kennedy’s employees with its equipment.

Kennedy submitted exhaustive testimony and twenty-one exhibits showing its calculated cost and profits for each item listed in the Corps of Engineers bid form. Included were worksheets showing the hourly cost of operating each piece of equipment and the cost of employees detailed item by item and piece by piece; purchase tickets establishing the cost of fuel, grease, oil, and cable; bids received for gravel, concrete, riprap, clay and corrugated pipe and the cost of transporting these materials; figures indicating the cost of obtaining and operating a new dragline; tabulations of how the equipment would perform; contracts, bid forms, specifications and maps; and climatological data for the area prepared by the U.S. Weather Service. All of this data was admitted without objection. Cost and profit were calculated as follows:

Item Bid Cost Profit

1. Clearing $ 2,950.00 781.46 $ 2,168.54

2. Excavation 108,000.00 64,857.00 43,143.00

3. Corrugated Pipe 60,750.00 31,017.55 29,732.45

4. Clay Gravel Surfing 1,440.00 853.44 586.53

5. Filter Gravel 5,940.00 4,567.90 1,372.10

6. Riprap 21,000.00 17,860.75 3,139.25

7. Grout 16,500.00 12,732.20 3,767.80

TOTAL $216,580.00 $132,670.30 $83,909.67

Less Depreciation 19,502.00

$64,407.67 Profit

On appeal we must view the evidence in the light most favorable to the appellee. If there is substantial evidence to support the jury’s verdict we must affirm. We conclude the appellee’s proof was sufficient to take the question of profits out of the realm of speculation and conjecture and presented to the jury a reasonably complete set of figures to support the jury’s verdict.

Affirmed.


author: George Rose Smith, Justice. Darrell Hickman, Justice,

text:
    Michael JACKSON v. KINARK CORPORATION, d/b/a CAMELOT HOTEL
    84-104
    669 S.W.2d 898
    Supreme Court of Arkansas
    Opinion delivered June 4, 1984

      R. J. Brown, by: Lisa A. Kelly, for appellant.

      Friday, Eldredge & Clark, James W. Moore and Michael S. Moore, by: Michael S. Moore, for appellee.
   George Rose Smith, Justice.

In March, 1981, the appellant, Michael Jackson, was employed by the appellee to be a banquet server at the Camelot Hotel in Little Rock. Fourteen months later Jackson was discharged for refusing to take a polygraph test in connection with the disappearance of a television set at the hotel. Jackson brought this action for damages, both in contract and in tort, alleging that his discharge was wrongful and abusive. The trial court granted a motion for summary judgment on the contract claim, holding that the complaint did not state a cause of action because Jackson’s employment was not for a definite term. See Petty v. Missouri & Ark. Ry. Co., 205 Ark. 990, 167 S.W.2d 895, cert. den. 320 U.S. 738 (1943); St. Louis, I.M. & S. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902, 39 LRA 467 (1897). The plaintiff then took a nonsuit as to the tort claim and appealed from the summary judgment dismissing the contract claim. The Court of Appeals transferred the case as presenting an issue of significant public interest.

Our decision in the Petty case, almost a century ago, followed the common-law rule that when a contract of employment does not bind the employee to serve for a specified time, the contract may be terminated at will by either party, even though the contract provides that the employee can be discharged only for cause. There is then no cause of action for wrongful discharge, the employee being entitled to compensation only for his period of actual service.

The appellant correctly points out that in a number of other states the law is undergoing a change, with the courts softening the harshness of the common-law rule either by finding an express or implied agreement for a specified period of employment or by imposing on the employer a duty not to discharge the employee arbitrarily or in bad faith. Annotation, 12 A.L.R. 4th 544 (1982). See also Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982), where we recognized the new trend but did not find it necessary to explore the issue.

We are unwilling to dispose of an important issue on what in this instance amounts to a demurrer to the complaint. In a case of this kind, as the decisions elsewhere demonstrate, the facts of each particular case are important, for the courts’ conclusions have varied with the fact situations. Here there is attached to the complaint a printed Employee Handbook which Jackson received and acknowledged. He asserts that it constitutes a definite contract of employment. This handbook describes in detail certain Conditions of Employment. Among them is an initial trial period of three months, with a possible implication that a new employee who completes that term, as Jackson did, can then be discharged only for cause. That the handbook is a contract on which Jackson relied is not refuted by the motion for summary judgment, which was not accompanied by affidavits demonstrating that under the current trend of the law no genuine issue of fact exists. We will be in a position to fully consider that trend only after the facts in this case have been definitely determined. The tort claim, if renewed, may also be pertinent. In the circumstances summary judgment is not approriate, further proceedings being necessary to establish the facts.

The appellee’s argument that the judgment should be affirmed under Rule 9, for want of a sufficient abstract of the record, cannot be sustained. The appellant’s abstract is deficient, but not flagrantly so. Rule 9 (e) (2). Five years ago we noted in a per curiam order that written exhibits in the record which can be abstracted in words must be so abstracted rather than being attached as exhibits to the brief. Compiler’s note to Rule 9, Ark. Stat. Ann., Vol. 3 A (Repl. 1979). This appellant has not abstracted the 25-page handbook. Instead, a photocopy of the handbook, in type that is not large enough or legible enough to comply with Rule 8, has been inserted in the abstract as an exhibit to the complaint. That procedure does not comply with Rule 9 (d), any more than does the inclusion of such copies in an appendix to the abstract or brief. The pertinent parts of written exhibits that can be abstracted in words should be so abstracted.

Reversed and remanded.

Adkisson, C.J., and Hickman, J., concur.

Darrell Hickman, Justice,

concurring. I agree with the result reached but do not join in encouraging reconsideration of our cases which have settled the law regarding the termination of an employee who has no contract for a definite term.

Adkisson, C.J., joins.


author: Darrell Hickman, Justice. P. A. Hollingsworth, Justice,

text:
    Charles Isaac WILSON, Jr. v. STATE of Arkansas
    CR 83-129
    669 S.W.2d 889
    Supreme Court of Arkansas
    Opinion delivered June 4, 1984

      John W. Settle, for appellant.

      Steve Clark, Atty. Gen., by: Velda West Vanderbilt, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Charles Isaac Wilson, Jr., was convicted of rape, aggravated robbery, and burglary, and sentenced to forty years and fined $ 15,000. He essentially makes three arguments on appeal: his identification by the victim was unreliable, improper verdict forms were submitted, and the victim’s street address should not have been admitted because it identified the appellant as the “Yorkshire Rapist.” We find no error and affirm.

The identification of the appellant by the victim was made after a voice lineup. Such identification is permissible. See Kellensworth v. State, 272 Ark. 252, 631 S.W.2d 1 (1982); Rhea v. State, 104 Ark. 162, 147 S.W. 463 (1912); United States v. Scully, 546 F.2d 255 (9th Cir. 1976), vacated and remanded on other grounds, United States v. Cabral, 430 U.S. 902 (1977); 2 Wigmore on Evidence § 660 (1979); J. Weinstein and M. Berger, Weinstein’s Evidence § 901 (b) (5) [01] (1983). It is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence and then it is for the jury to decide what weight the identification testimony should be given. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983); Watkins v. Sowders, 449 U.S. 341 (1981); Manson v. Brathwaite, 432 U.S. 98 (1977); see also Weinstein’s Evidence, supra. We do not reverse a trial court’s ruling on the admissibility of identification evidence unless it is clearly erroneous, Kellensworth v. State, supra, and do not inject ourselves into the process of determining reliability unless there is “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377 (1968). That likelihood does not exist in this case.

The victim never saw her assailant. She saw a figure crouching in the doorway of her bedroom, and a quilt was immediately thrown over her head. But she said that the rapist talked to her for an hour and a half. She said that he seemed to be a foreigner and spoke in “broken” English. About three months after the attack and before she identified the appellant in the voice lineup, the victim received a telephone call from a man whom she recognized as her assailant and then concluded that he was a black man. Her testimony concerning the call is important; it reads:

Q. Okay. What type of voice was it?
A. I said it was like an Iranian-type voice.
Q. Okay, now, when you say Iranian-type voice, what do you mean?
A. Kind of like a broken English type. He would leave words out, like, “I cut you,” and things on that order. He wouldn’t put all the words together.
Q. In other words, he spoke English but he would leave some of the grammar type things out?
A. Yes.
Q. Instead of “I’ll cut you,” it was, “I cut you”?
A. “I cut you.”
Q. At the time did you feel like that you could recognize the voice if you heard it again, based upon the tone and quality?
A. I knew I could.
Q. Did you have an occasion to hear that voice again later?
A. Yes, I did.
Q. How was that?
A. In — I got a phone call about in June and I had gotten a few phone calls before I had moved from the apartment, and when I would answer they would just hang up. Then I got one one morning and asked if Cheryl was there, and I went to the phone. When I got there, the person had hung up, and then about 4:00 that afternoon I got another phone call and he asked who it was, and I said it was Cheryl, and he said, he asked me what I was wearing, and I just told him it was none of his business, and he said something, you know, like, “Do you want me to come to your apartment on Yorkshire?” And I said, “No,” and he said, “What are you wearing?” and I said, “Well, I was wearing a robe,” and he said, “Take it off,” and I said, “No.” We were just kinda bickering back and forth.
Q. Did he say anything else to you?
A. He told me I was the best.
Q. He said you were the best?
A. And I said, “Best what?” And he said, “You know.”
Q. Tell us about the accent on that phone call.
A. It was — It was the voice of a colored man, but it was kind of like still leaving the words out, you know, certain — like he asked me, “You listen to me?” And I said, “Yes, I’m listening.”
Q. So in other words, some of it was with leaving the words out and some of it wasn’t?
A. Yeah.
Q. Like somebody wasn’t keeping their words straight?
A. Yes, like he wasn’t really trying, you know. It was just every once in a while, maybe, to get it through my head who I was really talking to or something.
Q. Now, did you later have occasion to hear the voice in the apartment again?
A. I did.
Q. Where was this?
A. At a lineup. (Italics supplied.)

Another unusual event occurred in this case. Prior to trial the appellant saw the victim and appeared to know her. Her testimony is as follows:

Q. Did you have an occasion later to see him in this courthouse?
A. Yes, I did.
Q. Okay, and did he indicate to you that he knew who you were?
A. Yes, he did.
Q. How did he do that?
A. It was through his first trial.
Q. Okay, what did he do?
A. He walked in the room and —
Q. Okay, Ms. Jackson, on the other occasion that you saw the defendant, did he focus his attention on you out of a room full of people?
A. I was sitting in the middle of about four or five women.
Q. Now, where did he look at you?
A. He looked straight at me and said, “Hello”.
Q. What did he do?
A. Said, “Hello”. And smiled.
Q. You, of all the people?
A. (Nodding in affirmative).
Q. Until this point, had you ever been identified as the victim in this rape case?
A. No.
Q. He did not see you at the lineup to your knowledge?
A. No, he didn’t.
Q. Or at any other time?
A. No, he didn’t.
Q. And you don’t know — Again, you never knew the defendant before or after?
A. No.
Q. One more time. Is there any doubt in your mind the voice you heard in the lineup that you have now attached to the face of Charles Isaac Wilson was the voice of the man who assaulted you in your apartment the early morning hours of April 12th?
A. I am positive.

The jury could of course have given some weight to this testimony. These circumstances taken with the fact that the victim was positive about her identification of appellant strongly support the trial court’s decision to allow the evidence to go to the jury.

The appellant also contends that the identification was unreliable because after the victim participated in the lineup she marked her choice in a room where there was a typewriter containing a sheet of paper with a list of the lineup participants; after the appellant’s name was written the word “SUSPECT.” The victim testified, however, that she saw no such list and was unaware of any piece of paper in the typewriter. The trial judge undoubtedly chose to believe the victim’s testimony in determining the reliability of her identification and that is within his province.

The victim’s initial description of her assailant as a man of five feet, six or seven inches, was based on her observation of him lying next to her. The appellant is six feet, one inch. In those circumstances it would obviously be very hard for the victim to give a completely accurate estimation of height and we do not believe that the initial description contributed to “a very substantial likelihood of irreparable misidentification.” Again, this was a question for the trial court and the jury.

The appellant argues that error was committed in allowing testimony by the victim after she had been hypnotized. Hypnosis was used to stimulate the victim’s recall. The officer who attempted to hypnotize the victim, however, stated that she would not go into a trance; moreover, the victim stated that she was not hypnotized. During the sessions the victim told the officer the phrases that her assailant had spoken. Most of these, though, were the same phrases she recalled before any attempted hypnosis. This buttresses the testimony that she was not, in fact, hypnotized. Since the victim apparently was not hypnotized, the point has no merit.

The appellant also argues that the trial court erred in submitting modified verdict forms to the jury. The verdict forms allowed the jury to find the appellant guilty or not guilty of rape, aggravated robbery, and burglary. The forms for rape and aggravated robbery allowed the jury the additional choice of whether the crime was committed with a deadly weapon.

Ark. Stat. Ann. § 43-23S6.1 (Supp. 1983) provides that any person who is found guilty of a felony involving the use of a deadly weapon, whether or not an element of the crime, shall be sentenced to a minimum of ten years in prison without parole. The modification of the verdict form was made to bring this statute into play. Since it clearly states that it is applicable whether or not the use of a deadly weapon is an element of the crime, and since the testimony revealed that the assailant threatened the victim throughout the crime with a knife, its inclusion was proper. The verdict forms reflected both the information under which the appellant was charged and the legal definition of the crimes and were therefore proper.

The offenses for which the appellant was convicted were part of a series of charges against him all of which involved the rape of women living on Yorkshire Drive in Fort Smith. The news media sometimes referred to the attacker as the “Yorkshire Rapist.” Before trial the appellant moved that no mention be made of the victim’s address on Yorkshire Drive. The trial court denied the motion and her address was mentioned twice. In this regard the appellant argues that he was precluded from conducting an effective voir dire of the jurors as to their knowledge and bias about the Yorkshire Rapist because “it would have been impossible to ascertain knowledge without improperly disclosing prejudicial material.” The appellant filed a pre-trial motion requesting a sequestered voir dire of the potential jurors. That motion was denied and the appellant chose not to question the jurors on the subject. On appeal, the appellant fails to object to denial of the motion. Because of these omissions there is no evidence that any of the jurors had heard of the Yorkshire Rapist, or if they had, that the recitation of the victim’s street address enabled them to make that connection. Therefore, the point is without merit.

Affirmed.

Purtle, Hays, and Hollingsworth, JJ., dissent.

P. A. Hollingsworth, Justice,

dissenting. Charles Isaac Wilson, Jr., the appellant was convicted in Sebastian County of rape, aggravated robbery, and burglary. He was sentenced to forty years in prison and fined $15,000. The majority affirms, and I strongly disagree.

The appellant’s argument is that the prosecutrix’s identification testimony was tainted by an unconstitutionally suggestive lineup and identification procedure an was therefore unreliable. I agree and would reverse the trial court as to this point.

The appellant filed a pretrial motion to suppress identification testimony. The prosecutrix had given a report to the police immediately following the assault on her person. She stated to the officers that she rolled over in bed and saw somebody crouching in her doorway who lunged on top of her and covered her head with a blanket before she could get up. That was her only glimpse of the rapist who stayed with her for over an hour and a half. She described the rapist’s voice as Iranian type, “kind of like a broken English type.” She said he left out words “like ‘I cut you’ and things on that order.. . . He wouldn’t put all the words together. . . It could have been a Cuban accent.” She also estimated the rapist to be between 5'5" and 5'7" in height based on the time he spent lying next to her.

Between the date of the rape, April 12, and the identification of the appellant, four voice lineups were conducted. On April 14, the prosecutrix indicated that she heard a voice similar to her attacker’s. The similar voice was a white male detective who was attempting to imitate a Spanish or foreign accent. In this one and the subsequent two, the lineups were not viewed by the prosecutrix; only their voices were heard. In the lineup where the appellant was identified, the prosecutrix viewed the lineup and simultaneously heard the five participants speak. Contrary to previous lineups, the prosecutrix was told by the police that a suspect was present in this lineup. While she was in the room marking her choice, a paper was in a typewriter in that same room with a list of the participants in the lineup clearly visible. After each participant’s name was a physical description, with the exception of the appellant. The word “SUSPECT” appeared after his name. Several other people who walked through the room stated that they clearly saw the paper and its contents. The prosecutrix admitted seeing the typewriter in the room, but she denied having seen the list.

At the trial of this matter, the prosecutrix testified that she had received a phone call from the rapist. For the first time, at trial, she stated the voice of her attacker was that of a colored man. She buttressed her testimony by saying that she also saw the appellant at another one of his trials where he was accused of a similar charge and that he said hello to her there. She did not say that his voice was the same as her attacker. The prosecutrix states that the appellant speaking to her confirms in her mind that the appellant is the rapist.

Manson v. Brathwaite, 432 U.S. 98, 111-112 (1977) emphasized the troublesome characteristic of such evidence:

The driving force behind United States v. Wade, 388 U.S. 218 (1967), Gilbert v. California, 388 U.S. 263 (1967) (right to counsel at a post-indictment lineup), and Stovall, all decided on the same day, was the Court’s concern with the problems of eyewitness identification. Usually the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. The witness’ recollection of the stranger can be distorted easily by the circumstances or by later actions of the police.

To guard against this danger we hold inadmissible evidence tainted by suggested confrontation procedures and lacking adequate indicia of reliability as is present here.

The appellant is a 6T" black male, American born and raised in Fort Smith, who does not speak with a foreign accent. There was testimony that appellant’s voice has no trace of any accent and his vocabulary and voice are good. A review of the tape of his voice included in the record is in agreement with this characterization of appellant.

We have previously said that whether identification testimony is admissible is essentially a question of reliability. The opportunity to observe the criminal, the accuracy of the victim’s description, the amount of certainty of the victim at the time of the confrontation, and the length of time between the crime and the identification are all factors to be weighed against any suggestions. Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981); McCraw v. State, 262 Ark. 707, 561 S.W.2d 71 (1978). When all of these elements are considered, the identification in this case has serious defects. Immediately after the rape, the prosecutrix described her assailant as talking with an accent, having dark hair of medium length, being 5'5" to 5'7" tall, and having repeated such phrases as: “I want you money”; “I tie you up”; “I no hurt you”. She indicated that all of these phrases are indicative of the mannerisms and the way the rapist speaks. The prosecutrix in this case instructed the police that a man who was about 5'6" in height and spoke with a foreign accent attacked her. She subsequently identified the appellant, a 6T" black man with no discernible accent.

We upheld a conviction partially based on a voice identification in a more recent case. In Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983), however, the prosecutrix was able to:

clearly hear, partially view and sketchily feel her attacker over the period of an hour. . . . Immediately after the crimes the prosecutrix accurately described the criminal to the first arriving police officer. . . . Thus, the description given immediately after the crimes was consistent with the lineup identification. Her degree of attention was impressive. She made no mis iden ti f ica tion.

Here, the prosecutrix was only able to hear her attacker. The physical description she gave the police turned out to be inaccurate as was her characterization of her attacker’s voice. The identification stemming from the improperly conducted lineup should be excluded and the courtroom identification based on the lineup and identification that followed logically should be excluded as well. When viewing this case on the totality of the circumstances, I cannot say that the prosecutrix’s identification of the appellant as her rapist is so reliable as to avoid the possibility of misidentification. I would reverse.

Purtle and Hays, JJ., join in this dissent.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Rickie Earn BERNA v. STATE of Arkansas
    CR 83-153
    670 S.W.2d 435
    Supreme Court of Arkansas
    Opinion delivered June 4, 1984

      John R. VanWinkle and Fines F. Batchelor, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Ricky Earn Berna was convicted of three charges of kidnapping, one charge of rape and one of aggravated robbery; he received a life sentence plus eighty years. The evidence of Berna’s guilt is overwhelming and that is a factor in reviewing any allegation of error. See Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979); Harrington v. California, 395 U.S. 250 (1969); Chapman v. California, 386 U.S. 18 (1967). In reviewing Berna’s arguments we find that no prejudicial error was committed and that he received a fair trial. Consequently, the judgment below is affirmed.

The facts are undisputed. On December 10,1981, Linda Kay King was at home at Mulberry, Arkansas, with her two pre-school age daughters. Berna came to her door with a gun and a butcher knife, told her to open the door and make no noise. He tied her hands. She recognized him when he started questioning her about everyone he knew in Mulberry. He untied her so that she could put shoes on and when she was in the bedroom, she tried to get her husband’s rifle. Berna took it away from her, tied her hands again and threatened to kill her. He put Mrs. King and her two daughters in the front seat of the Kings’ car and drove around the vicinity for approximately seven hours. He threatened to kill Mrs. King several times, and, at one time when they were stopped, struck her and threw her to the ground when she tried to lock him out of the car. He put her and the children in the trunk. Later he stopped, took one of the daughters out of the trunk, and the evidence reflects that he sexually abused her, requiring her to undergo surgery later to correct the damage done. Mrs. King tried to tear her way into the car through the back seat but was unsuccessful. Berna left the three victims in a rural area where they walked until they found help. Mrs. King immediately contacted the authorities and late that night, with a warrant for his arrest, several law enforcement officers went to Berna’s home where he was living with his mother. His mother told them that Berna was in the bedroom and was armed. For about an hour and a half the officers tried to get Berna to surrender. At one point a deputy sheriff, who knew Berna and had attended school with him, conducted the negotiations directly. Eventually Berna threw the keys to the King vehicle to the deputy and told him where the vehicle was. Later Berna surrendered without further resistance. Two guns were confiscated, a .357 pistol and the Kings’ rifle. Berna was taken to the police station where he was warned of his rights for the first time. He was committed to the Arkansas State Hospital for a mental examination on February 3,1982, and the authorities reported that he was unable to assist in his defense. On an inquiry by the circuit court in December of 1982, the authorities reported that since his treatment Berna was capable of assisting in his defense and the matter was set for trial.

There are four main arguments made by the appellant. First, it is argued that the trial court erred in refusing to quash the jury panel. It was demonstrated in this case that the jurors were summoned by ordinary mail and not by certified mail as required by Ark. Stat. Ann. § 39-210 (Supp. 1983). Furthermore, the appellant placed a considerable number of statistics in the record to show a true cross-section of the community could not be obtained in Crawford County due to past practices and the statutes in effect. For example, it is argued that 225 names were drawn from the jury panel, yet only 55 showed up for examination. The circuit clerk testified that only 97 of those drawn were summoned. Some were excused by the circuit court, evidently for reasons permitted by Ark. Stat. Ann. §§ 39-107 and 108 (Supp. 1983). He argues that it is unconstitutional to summarily excuse, for example, persons over 65, dentists, clergymen, nurses and persons of other professions. There is no argument, however, how Berna was prejudiced by the jury panel in question. In two cases where we have considered irregularities regarding jury panels, we have stated that some prej udice must be shown in order to find grounds to reverse a conviction. Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983); Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977). No longer is it presumed that simply because an error is committed it is prejudicial error. In McDonough Power Equipment, Inc. v. Greenwood, _ U.S__, 104 S.Ct. 845, 78 L. Ed. 2d 663 (1984), the Supreme Court said:

This Court has long held that ‘[a litigant] is entitled to a fair trial but not a perfect one,’ for there are no perfect trials. Brown v. United States, 411 U.S. 223, 231-232 (1973), quoting Bruton v. United States, 391 U.S. 123, 135 (1968), and Lutwak v. United States, 344 U.S. 604, 619 (1953). Trials are costly, not only for the parties, but also for the jurors performing their civic duty and for society which pays the judges and support personnel who manage the trials. It seems doubtful that our judicial system would have the resources to provide litigants with perfect trials, were they possible, and still keep abreast of its constantly increasing case load. . . .
We have also come a long way from the time when all trial error was presumed prejudicial and reviewing courts were considered ‘citadels of technicality.’ Kotteakos v. United States, 328 U.S. 750, 759 (1946), quoting Kavanagh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 A.B.A.J. 217, 222 (1925). The harmless error rules adopted by this Court and Congress embody the principle that courts should exercise judgment in preference to the automatic reversal for ‘error’ and ignore errors that do not affect the essential fairness of the trial. See Kotteakos, 328 U.S., 759-760.

Furthermore, in Taylor v. Louisiana, 419 U.S. 522 (1975), the Supreme Court said:

The States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community’s welfare. Rawlins v. Georgia, 201 U.S. 638 (1906). It would not appear that such exemptions would pose substantial threats that the remaining pool of jurors would not be representative of the community.

In the case at bar there was no deliberate exclusion of any class of persons and certainly not of any large class of persons. See Waters v. State, 271 Ark. 33, 607 S.W.2d 336 (1980). Since Berna is unable to show that he was prejudiced by the selection process and the jury panel in any way, his argument is without merit. We do not approve the procedure used but the question to us is whether there was prejudicial error.

Although the guns seized at Berna’s residence were not introduced into evidence, the fact that he threw out the keys to the King vehicle and said they were the keys to the King vehicle was admitted into evidence. Also, an expert testified that he obtained a fingerprint of Berna’s from the trunk of the King vehicle. The question is raised whether this evidence was the product of an illegal search and seizure or a custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436 (1966).

The deputy testified, out of the hearing of the j ury, that when he was negotiating with Berna, Berna said “[L]ets talk about that bitch’s car down the street.” The deputy asked who he was talking about and Berna said, “the King woman’s.” When Berna asked if they knew where the car was, the deputy said no, and Berna told him where it was. The deputy asked what car and he said the Kings’ car. Then Berna threw the keys out and told the officers to go and get it. There is no doubt that there were eight or ten armed police officers surrounding Berna’s home and that they had a warrant for his arrest. But we find that the evidence was not the result of an “interrogation.” The facts in this case are similar to those in the case of State v. Porter, 274 S.E.2d 860 (N.C. App. 1981), where a robbery suspect was being held at gunpoint by one policeman. A police supervisor asked over the car radio if the officer had found a bank bag. The suspect, who had not been given his rights, said: “The bank bag is in the car.” The officer, who was at the scene, said: “What bank bag? ’ ’ and the suspect said: ‘ ‘The bag from the robbery. ’ ’ The North Carolina court held that, while the defendant was clearly in custody, there had been no interrogation when the officer asked “What bank bag?” The North Carolina court, relying on the definition of interrogation given in Rhode Island v. Innis, 446 U.S. 291 (1980), said:

[A] voluntary in-custody statement does not become the product of an ‘in-custody interrogation’ simply because an officer in the course of appellant’s narration, asks defendant to explain or clarify something he has already said voluntarily. Since there is no evidence here that defendant’s statements were made in response to overbearing police questioning or other police procedures designed to elicit a statement, we conclude that they were the product of free choice and without the slightest compulsion of in-custody interrogation procedures.

The reasoning of the North Carolina court applies here. There was no “interrogation” and Berna was not compelled to say anything. The officers were trying to arrest him without injury to anyone. Berna, himself, initiated the conversation about crimes, or at least that is what the record reflects. The deputy sheriff could not have known that his questions would induce Berna to throw the keys out. Consequently, we find that none of the evidence that was admitted as a result of his arrest was obtained illegally.

An objection was made to a remark by the prosecuting attorney during closing argument. The remark was found to be improper by the trial court and the objection was properly sustained. The court informed the jury that counsel’s remarks were not evidence. In his closing argument the prosecuting attorney, referring to testimony by a psychiatrist for the Arkansas State Hospital, said: “. . . But what did Dr. Rosendale tell you. He’s been released; they can’t hold him.” When Dr. Rosendale was extensively examined and cross-examined, the defense questioned him about how long an accused ordinarily remained in the state hospital and Dr. Rosendale said usually a year without a civil commitment, then they had to be released. This could be the testimony that the prosecuting attorney was referring to in his argument. In any event the trial court found it was improper for him to make the statement, sustained the objection, and admonished the jury. We find no reversible error.

Berna was released from the hospital in December, 1982, and found fit to stand trial. His counsel moved on March 1, 1983, for further funds for a local psychiatric witness and examination and for reevaluation by the state hospital. The trial court ordered all the physicians that treated Berna to speak with his counsel and ordered all his records be released. Since one of Berna’s doctors, Dr. Sayed Hamed, had relocated in California, the court ordered that the county pay for all counsel to go to California where a video tape deposition was taken; the defense used the deposition. It is argued that the denial of further funds for a private examination of Berna by a psychiatrist and a reevaluation by the Arkansas State Hospital was error. Berna contends that since Ark. Stat. Ann. § 41-601 (Repl. 1977) makes insanity an affirmative defense he was denied due process by not being provided with the requested assistance to prove the defense. We do not find that in the circumstances in this case Berna was denied due process of law by the action of the trial court. Due process of law does not require the state to furnish expenses for an appellant to shop from doctor to doctor until he finds one who considers him mentally incompetent. Hale v. State, 246 Ark. 989, 440 S.W.2d 550 (1969). There were four people who examined Berna when he was in the state hospital. They were Dr. Hamed, Dr. Dan Donahue, Dr. Philip Mizell and Dr. Albert F. Rosendale. There was a disagreement among the staff as to Berna’s mental condition. Dr. Hamed, who was used by the defense, was of the opinion that Berna was insane. That evidence was presented to the jury. Dr. Rosendale, who was of a different opinion, was called by the state and extensively examined and cross-examined by all the parties. We cannot say that the defendant was denied a fair trial in this case. It should be pointed out that the trial court appointed two, not one, counsel to represent Berna.

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

Affirmed.

Adkisson, C.J., concurs; Purtle, J., dissents; and Hollingsworth, J., concurs in part and dissents in part.

John I. Purtle, Justice,

dissenting. I cannot agree that evidence of appellant’s guilt is overwhelming. I have serious doubts as to his guilt. There is no question but that he committed the crimes for which he was convicted. However, his mental condition at the time of the commission of the crimes and at the trial is very uncertain. It would have been relatively easy to have returned him to the state hospital or to a regional treatment facility for the purpose of examination prior to trial. It would have cost far less than allowing the deposition of the doctor in California.

Within several weeks after appellant was arrested he was arraigned. He entered a not guilty plea by reason of mental disease or defect. He was sent to the state hospital on March 30,1982, and found by the staff of the state hospital to be suffering from mental disease or defect to the degree that he was unable to assist effectively in his defense and was unable to appreciate the criminality of his conduct. In December, 1982, he was declared to be competent to stand trial and was released from the state hospital with a 30 day supply of medicine. He was tried the first week in May of 1983.

On March 1, 1983, the appellant sought further examination relating to his defense of mental defect. Although the trial was still two months away the court refused to have him reexamined or allow funds for an independent examination. In view of appellant’s condition shortly after the crimes I believe j ustice demanded that he be given a current examination prior to trial. I think it was an abuse of discretion to refuse to have the appellant reexamined by the state hospital or to allow an independent examination.

Also, I wish to voice my objection to the manner in which juries are selected in Crawford County. When 70-75% of a selected panel are normally excused or fail to show up for duty at trial time it leaves the impression the jury wheel is really not being utilized although it was used to draw the panel in the beginning. A defendant is entitled to know when and why panel members are excused from serving at his trial. If 75% of those selected are ineligible to serve there is something wrong with the use of the jury wheel. In the future I will vote to reverse any judgment from any county when the selection of a jury is as haphazard as is demonstrated here. Likely there was no intent to do wrong; nevertheless it leaves a bad impression.

Hollingsworth, J., joins this dissent as to the manner of jury selection.


author: Darrell Hickman, Justice.

text:
    Allen Lynn PENN v. STATE of Arkansas
    CR 84-43
    670 S.W.2d 426
    Supreme Court of Arkansas
    Opinion delivered June 4, 1984

      William. R. Simpson, Jr., Public Defender, for petitioner.
    No response by appellee.
   Darrell Hickman, Justice.

Penn was convicted by a jury of the murder of Anthony Faherty on September 21, 1983, and received a sentence of life imprisonment without parole. He filed an appeal with us, and the record has been lodged. A petition has been filed here for a writ of error coram nobis or to invest the trial court to hear a motion for new trial. The ground given is a sworn statement made by Donald Lewis, who is evidently a prisoner at the Arkansas Department of Correction. Lewis’ affidavit is attached to the petition.

Penn is granted permission to file this petition with the trial court seeking a writ of error coram nobis, and the trial court is reinvested with jurisdiction to hear the petition, conduct a hearing and decide whether the writ is in order. If the court grants the writ, the remedy is a new trial; if it denies the writ, the remedy is a writ of certiorari. See Woods, The Writ of Error Coram Nobis in Arkansas, 8 Ark. L. Bul. 15 (1940).

Our action is a departure from our past decisions, but one that is proper at this time. However, our decision is strictly limited to the facts in this case. A writ of error coram nobis is an excessively rare remedy, more known for its denial than its approval. Literally, coram nobis means our court, in our presence, before us. The essence of the writ of error coram nobis is that it is addressed to the very court which renders the j udgment where injustice is allege to have been done, rather than to an appellate or other court. Black’s Law Dictionary 304 (1979). The writ is granted only when there is an error of fact extrinsic to the record such as insanity at the time of trial, a coerced plea of guilty, or material evidence withheld by the prosecutor. It must be a fact which might have resulted in a different verdict. In simple terms, this writ is a legal procedure to fill a gap in the legal system — to provide relief that was not available at trial because a fact exists which was not known at that time and relief is not available on appeal because it is not in the record. Therefore, the petition in this case will have to be addressed to the trial court instead of this court. We note here that there exists in criminal cases the remedy of obtaining a new trial for newly discovered evidence but that motion must be made within the time in which a notice of appeal has to be filed. See A.R.Cr.P. Rule 56.22 and Halfacre v. State, 265 Ark. 378, 578 S.W.2d 237 (1979).

The question raised by this petition is one of those which occasionally arise when coram nobis is sought: a person confesses to a crime after another has been found guilty of that same crime. Should a petition be entertained or not? In the past we have refused to hear petitions under such circumstances, holding that the remedy was one best addressed by the legislature or through clemency. Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940). In Gross v. State, 242 Ark. 142, 412 S.W.2d 279 (1967), we made the statement, “It [a writ of error coram nobis] is never a means of remedy upon the grounds of newly discovered evidence,” citing Howard v. State, 58 Ark. 229, 24 S.W. 8 (1893).

We have on several occasions recently denied petitions for writ of error coram nobis, but we have always recognized the existence of the remedy. In Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975), we set out the guidelines for granting the writ. They are:

(1) The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment;
(2) Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. The court is not required to accept at face value the allegations of the petition;
(3) Due diligence is required in making application for relief, and, in the absence of a valid excuse for delay the petition will be denied; and,
(4) The mere naked allegation that a constitutional right has been invaded will not suffice. The application should make a full disclosure of specific facts relied upon and not merely state conclusions as to the nature of such facts.

Troglin’s petition was denied because it was filed 22 years after his conviction. See Walker v. State, 251 Ark. 182, 471 S.W.2d 536 (1971); Wallace v. State, 251 Ark. 446, 473 S.W.2d 184 (1971); Demett v. State, 236 Ark. 851, 370 S.W.2d 191 (1963); Steel v. State, 248 Ark. 159, 450 S.W.2d 545 (1970).

Criminal law and procedure in criminal cases have changed dramatically in the last two decades. Due process of law is not the same as it was 30 years ago or even 10 years ago. Thirty years ago a writer discussed at length coram nobis in Arkansas and some quotes from his article are especially appropriate:

The growth of the writ is attributable, certainly, to a variety of causes. A great force in its development has been that growing concept, due process of law. The federal courts now show little hesitation in overturning state convictions if a state has no remedy or refuses to exercise it where a defendant has been denied due process of law. And where the federal decisions reflect a procedural gap in a state whereby a defendant denied due process of law is remediless without recourse to the federal courts, the courts of that state may utilize coram nobis to fill the void.
# # #
Under the prevailing concepts of the writ,. . . the rule is that coram nobis will not lie for newly discovered evidence. The defendant may not present any facts or evidence going to the merits — viz., adjudicated facts may not be put in question. Obviously, there is strong policy in favor of this limitation. Finality of judicial proceedings is of compelling importance, and certainly a device should not be allowed which could lead to interminable relitigation.
* # #
Even if the newly discovered evidence consists of a confession of guilt by another, customarily no deviation from the rule of nonavailability of the writ occurs. However, many confession cases in fact contain such circumstances as to cast doubt on their validity — the confession is later repudiated, or there are indications of collusion in a fraudulent confession.
* # #
Thus far the Arkansas Court has refused to deviate from the newly discovered evidence rule, even in the face of positive and convincing facts proving- innocence. However, no such case has come before the court in recent years, at least not since Anderson v. Buchanan [292 Ky. 810, 168 S.W.2d 48 (1943)] and the later decisions were rendered in other jurisdictions. In the event that the situation of the convicted innocent comes before the Arkansas court in the future, a critical examination of the writ of coram nobis in Arkansas, in light of the recent developments in other jurisdictions, would seem to be in order. And it may be hoped that the court will endorse the 'rule of reason’ in plugging a serious procedural gap and obviating possibilities of a miscarriage of justice. (Italics supplied.)

Haley, Coram Nobis and the Convicted Innocent, 9 Ark. L. Rev. 118 (1955).

The rule of reason is simply that the writ ought to be granted or else a miscarriage of justice will result. Davis v. State, 200 Ind. 88, 161 N.E. 375 (1928). By granting the right to petition the trial court, we do not in any way enlarge the other restrictions attendant to granting the writ. The trial court has the discretion to grant or deny it. The petitioner has a heavy burden to meet, especially in a case like this which must be approached with some skepticism for confessions by others are not uncommon. A written confession by another would not, alone, be grounds for relief. Obviously, the complete circumstances surrounding the statement and all the available evidence should be carefully scrutinized before a writ is granted. The trial court is in a good position, as will be the prosecuting attorney, to consider and test the merits of the petition. If it has merit, by all means a writ should be granted; if the petitioner fails in his burden of proof, then at least a hearing will have resulted. There will be no void in the system as there is now.

We emphasize that we do not open the door to other petitions beyond those that would qualify under the facts in this case, especially the fact that it is presently between trial and appeal and can easily provide for an early hearing before the court that just heard the case. The petition was timely filed and if the confession is true, an injustice would obviously result if it were not granted. At this point the judicial system with its machinery for seeking and finding the truth is a far better forum for determining justice than the clemency route; clemency is always a remedy after the legal system has given a case its full measure of deserved attention.

Petitioner is granted leave to file the petition in the trial court, and the appeal is stayed pending disposition.

Granted.


author: John I. Purtle, Justice.

text:
    Charles E. SCALES v. STATE BOARD OF LAW EXAMINERS
    84-33
    669 S.W.2d 895
    Supreme Court of Arkansas
    Opinion delivered June 4, 1984

      Philip W. Ragsdale, for appellant.

      House, Wallace ir Jewell, P.A., by: Philip E. Dixon, for appellee.
   John I. Purtle, Justice.

The State Board of Law Examiners denied appellant’s petition for reinstatement to practice law. Appellant contends here that the Board’s findings of fact and conclusions of law were clearly erroneous and that appellant should be reinstated to practice law. We hold that the action taken by the Board was not clearly erroneous.

Appellant was appointed guardian of the estate of Carolyn F. Jenkins in May of 1969. Shortly thereafter he commenced borrowing or using the estate funds for his personal use. The probate court revoked Mr. Scales’s guardianship on October 30, 1970. The court also entered judgment against him for $12,625 representing funds he had withdrawn from the estate without authorization. On March 11, 1971, he was charged with seven felony counts of embezzlement.

Appellant filed a petition in the Supreme Court on April 18, 1974, wherein he requested the court to accept the surrender of his license to practice law. This court granted the petition and accepted surrender of appellant’s license on January 17,1975. He entered a guilty plea on April 10,1975, and was given a five year suspended sentence. He was subsequently discharged and the record of conviction was expunged. He applied for reinstatement on March 29, 1982. The State Board of Law Examiners held a hearing on September 27, 1983, and entered its findings of fact and conclusions of law on January 19,1984, denying the petition for reinstatement. This appeal followed.

On appeal the findings of the State Board of Law Examiners are reviewed de novo, and unless clearly erroneous, they will not be set aside. In re Shannon, 274 Ark. 106, 621 S.W.2d 853 (1981); Rules Governing Admission to the Bar, Rule XIII. When appellant petitioned this court to accept surrender of his license to practice law in Arkansas he stated: “I understand this surrender is final and permanent, and that I cannot be reinstated, or practice law, unless the Court should grant a petition for reinstatement after such hearings, and upon such conditions as it may fix.” The Board heard the evidence and considered the matters presented by appellant. The Board found that appellant had been away from the practice of law for 13 years and that he had personally repaid only $200 of the $12,625 he took from his client. It does not matter that the bonding company repaid the funds appellant took from his client because it was the appellant who benefited from taking the funds which did not belong to him. In Shannon the petitioner had reformed and even become an ordained minister but he had not made restitution. He too had been pardoned for the crime he had committed. Appellant simply did not carry his burden of convincing the Board he should have his license restored. After a review of the record we cannot say the Board’s findings were clearly erroneous. Its determination will be upheld.

Affirmed.


text:
    Roy HAMPTON and Linda HAMPTON v. ARKANSAS LOUISIANA GAS COMPANY; R & R PIPELINE CONSTRUCTION AND REPAIR, INC.; and FARMERS MUTUAL INSURANCE COMPANY OF GENTRY, ARKANSAS
    84-77
    669 S.W.2d 476
    Supreme Court of Arkansas
    Opinion delivered June 4, 1984

      Young ir Finley, for appellant.

      Friday, Eldredge & Clark, by: William M. Griffin, III, for appellee Arkansas Louisiana Gas Co.

      Tatum ir Sullivan, P.A., for appellee R 8c R Pipeline Construction and Repair, Inc.

      Laws & Swain, P.A., for appellee Farmers Mutual Insurance Company of Gentry, Arkansas.
   John I. Purtle, Justice.

The trial court, sitting without a jury, awarded appellants the sum of $391.75 on their claim for damages against the appellees. For their appeal the appellants argue the trial court erred in excluding certain testimony and that the court’s findings were not based upon the clear preponderance of the evidence. We do not agree with appellants.

The appellees were involved in a project to construct a gas transmission line across appellants’ property. Arkansas Louisiana Gas Company contracted with R & R Pipeline Construction and Repair, Inc. to construct the pipeline and procured a policy of insurance from Farmers Mutual Insurance Co. of Gentry, Arkansas. The insurance policy was for the protection of appellants. During construction the contractor cut appellants’ fences and blasted within a few feet of a chicken house used by appellants for commercial poultry production. Appellants filed suit for blasting damages to the chicken house and equipment and for damages for cutting the fences and letting the milk cow out. During the trial the court refused to accept certain testimony from the appellant wife concerning value of the property and the amount of damages resulting from blasting. Also, damage testimony by one of appellants’ witnesses was rejected. Several witnesses testified for both sides on the matter of causation. The trial court found there was no blasting damage to the property.

We hold that the trial court was not clearly erroneous in holding that there was no damage to appellants’ property caused by blasting. Appellants’ witness Finkenbinder stated that in his opinion dynamite had nothing to do with the damage. Appellees’ witnesses Gotcher and Stewart testified that in their opinion the blasting did not cause any damage to the property. There was evidence presented to support the decision of the trial judge. When reviewing a judgment for sufficiency of the evidence to support a verdict by a trial judge we consider the evidence most favorable to appellee and affirm unless the judge’s decision is clearly erroneous. Smith v. R. A. Brooks Trucking Co., 280 Ark. 510, 660 S.W.2d 1 (1983); and Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983).

In view of our holding that the trial court’s decision that there was no blast damage is not clearly erroneous we do not reach the argument relating to damage testimony of the witnesses. Neither is it necessary to discuss strict liability from blasting because before there can be recovery, there must be causation. Mixon v. Chrysler Corp., 281 Ark. 202, 663 S.W.2d 713 (1984); Ford Motor Co. v. Tritt, Adm’x, 244 Ark. 883, 430 S.W.2d 778 (1968).

Affirmed.

Hollingsworth, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Thomas Edmond CROCKETT v. STATE of Arkansas
    CR 84-14
    669 S.W.2d 896
    Supreme Court of Arkansas
    Opinion delivered June 4, 1984

      Porter & King, by: Durwood, W. King, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Thomas Edmond Crockett, entered a plea of guilty to the charge of first degree murder. He was sentenced to imprisonment for the remainder of his life. His sentence is now in execution and he seeks to collaterally attack the conviction by alleging ineffective assistance of counsel and by proceeding under the provisions of A.R.Cr.P. Rule 37. The trial court refused relief. We affirm. Jurisdiction is in this court under Rule 29 (l)(e).

The appellant contends that he had ineffective counsel because his counsel did not file either a motion for discovery or a motion to suppress his confession.

The Sixth Amendment right to counsel is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). However, the burden rests upon the defendant to demonstrate ineffective assistance of counsel. United States v. Cronic,_U.S__, 104 S.Ct. 2039, slip op. at 1,0 (1984). Such a constitutional violation can be shown only by pointing to specific errors made by trial counsel. United States v. Cronic, id., slip op. at 18. If alleged errors are specified, as they are in this case, they are to be evaluated under the standards enunciated in Strickland v. Washington,_U.S__, 104 S.Ct. 2052 (1984).

In Strickland, the Court, for the first time, elaborated on claims of actual ineffectiveness. The Court held that the benchmark for judging a claim of ineffectiveness is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to reach that mark, a defendant must prove that counsel’s performance was deficient and the deficient performance was so prejudicial that the result of the trial is not reliable. Strickland v. Washington, Id., slip op. at 17.

The guilty plea was the trial in this case. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). A defendant whose conviction is based upon a plea of guilty normally will have difficulty in proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged. See A.R.Cr.P. Rule 24.6; Reed v. State, 276 Ark. 318, 635 S.W.2d 228 (1982); McMann v. Richardson, 397 U.S. at 766 (1970).

In the case at bar, the appellant, in open court in the original proceeding, admitted that he robbed and murdered James Williams. At the post-conviction hearing he offered no evidence to show that his conviction was unreliable. Since there is no reasonable doubt about appellant’s guilt or the reliability of the conviction, the appellant has suffered no prejudice. As a result, it is not necessary for us to examine the allegation of deficient performance by counsel. Again, the failure to prove either sufficient prejudice or deficient performance by counsel defeats a claim of ineffectiveness of counsel. Strickland v. Washingotn, Id., slip op. at 30.

Affirmed.


author:
Steele Hays, Justice.
      John I. Purtle, Justice,

text:
    John THROWER v. UNION LINCOLN-MERCURY, INC.
    84-46
    670 S.W.2d 430
    Supreme Court of Arkansas
    Opinion delivered June 4, 1984

      Marilyn Rauch and Sandra A. De Boer, Central Arkansas Legal Services, for appellant.

      Thurman, Hockett ir Raíble, for appellee.
   Steele Hays, Justice.

This suit for a deficiency judgment by Union Lincoln-Mercury against a defaulting creditor, John Thrower, turns on determining the proper method to compute the surplus or deficiency after foreclosure under Ark. Stat. Ann. § 85-9-501 et seq. Thrower, the appellant, entered into a contract to purchase a 1980 Mercury Marquis from Union, the appellee, which retained a security interest in the automobile. Thrower subsequently defaulted in payments under the contract and returned the collateral to Union. Union gave Thrower “Notice of Repossession and Right to Redeem,” and also the proper notice of its intent to dispose of the collateral at private sale. The collateral was sold at private sale to C. P. Schulte, for $9,325. As part of the transaction, Union allowed $2,000 on a 1976 Mercury Schulte offered as a trade-in, which Union resold for $1,200 at wholesale. Union paid $8,927.58 (the amount remaining on Thrower’s debt) to Ford Motor Credit Company, to whom it had guaranteed Thrower’s sales contract. Pursuant to § 85-9-504 (l)(b) & (2) Union credited Thrower with the proceeds of the Schulte sale totalling $8,525. (Schulte’s down payment of $1,000, $1,200 from the sale of the trade-in, and Schulte’s note for the balance, $6,325) and instituted this action against Thrower for the deficiency in the amount of $402.58. Thrower counterclaimed, alleging that there was in actuality a surplus of $479.42 which was owed to him (the difference between the selling price of $9,325 and the loan balance of $8,927.58). The court entered a judgment for Union in the amount of the deficiency.

The appellant argues on appeal that the secured party should not be permitted to deduct from the proceeds of the resale of the 1980 Mercury, as an allowable expense, the difference between the $2,000 allowance for the trade-in and the $1,200 received from the wholesale price. The thrust of appellant’s argument is that the $800 over-allowance on the trade-in from Schulte was an expense incurred by Union that was only incidental to doing business, did not result from the default of Thrower, and is not an allowable expense under § 85-9-504 (l)(a). We find the argument is without merit. The over-allowance, as it is termed, is not a distinctively separate expense as are those suggested in § 85-9-504 (l)(a) or merely incidental to doing business, rather it is an integral part of the bargain and sale of the collateral. The dealer, when selling the repossessed car at what it determines is a marketable price, takes into consideration the buying or bargaining preferences of any individual purchaser in order to make the sale more attractive. The dealer could choose to simply reduce the asking price or grant an over-allowance as was done here. This was in essence the finding of the trial court: “. . . It is the view of the court that the sale of the 1979 [sic] Mercury and the sale of the 1976 Mercury taken in trade should be treated as parts of the same transaction; that is, disposing of the collateral. Whatever net proceeds were realized after the completion of the transaction, or $8,525, is the proper basis for computing any surplus or deficiency ...”

This issue has not been raised frequently under the Uniform Commercial Code and the few cases dealing with it have arrived at the same conclusion as we do here. See Broome v. Rodman Ford Sales, Inc., 16 Mass. App. Ct. 183, 456 N.E.2d 469 (1983); Don Jenkins & Son Ford-Mercury v. Catlette, 59 N.C. App. 482, 297 S.E.2d 409 (1982); Webster v. General Motors Acceptance Corp., 267 Or. 304, 516 P.2d 1275 (1973). In Jenkins, the court found that the use of an over-allowance was an established trade practice when a trade-in is used as partial payment and noted that § 9-507(2) states that if the secured party has sold the collateral in conformity with reasonable commercial practices among dealers in the type of property sold, he has sold in a commercially reasonable manner. Similarly, there was unrefuted testimony in this case that it is a common trade practice to take trade-ins as part of the sales price and that over-allowance of the trade-in is an accepted trade practice and was necessary in this case to sell the collateral.

The Broome opinion supra, gives a sound and reasoned summation of the problem. There, the debtor was suing to recover a surplus and the amount the dealer had computed was arrived at by the same method approved by the trial court in this case. The court found the dealer’s method correct and said in part:

. . .[S]urplus due should be computed on the basis of the fair market value (at the time of the sale of the collateral) of any trade-in vehicle together with cash received by [the dealer], rather than the sale price listed on the bill of sale.
In this case, the trade-in allowance was inflated to induce the sale and the sale price was similarly inflated. Thus, the bill of sale reflected a price higher than the fair market value of the vehicle and higher than the value actually received for the collateral by the creditor. To compute surplus on the basis of this listed price without a deduction for the trade-in over-allowance would give the debtor a windfall gain in the amount of the over-allowance and cause the creditor to be out-of-pocket this amount.
A determination of surplus or deficiency on the basis of a trade-in allowance instead of market value could be equally unfair to the debtor whose vehicle was repossessed and sold. If upon the sale a trade-in vehicle was accepted and the amount allowed on the trade-in was below market value it could result in a deficiency for which the debtor would be liable under the statute.

Given this method of determining surplus or deficiency, then the primary concern of both debtor and creditor is that the disposition be conducted in a commercially reasonable fashion. § 85-9-504(3) states:

Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. (Our emphasis.)

If there is any concern over the price received for the trade-in or for the collateral, the debtor should challenge that aspect of the sale which he feels has made the disposition commercially unreasonable so as to result in an insufficient price. The creditor’s right to deficiency is established by § 85-9-504 (2) and the burden is upon the secured party as the plaintiff to establish the amount to which it is entitled. When the secured party’s handling of the disposition is attacked for want of commercial reasonableness, it then has the burden of proving it complied with the provisions of Part Five. Universal C.I.T. v. Rone, 248 Ark. 665, 453 S.W.2d 37 (1970); Farmers Equip. Co. v. Miller, 252 Ark. 1092, 482 S.W.2d 805 (1972). When the sale is conducted according to the requirements of the code, the amount received is evidence of the collateral’s true value in such an action. Universal C.I.T. v. Rone, supra. When the value of the collateral (or trade-in) is at issue, if the secured party has failed to comply with §§ 85-9-501—507, then it has the burden of showing the amount that would have been obtained through a sale according to law. Cf. Barker v. Horn, 245 Ark. 315, 432 S.W.2d 21 (1968).

This case is one of first impression and in fairness to the debtor, as the issue was not fully developed below, we think it proper to remand the case to determine whether or not the sale of the trade-in was handled in a commercially reasonable manner. The major consideration will be the determination of the fair market value of the trade-in. Factors which have been suggested to establish a fair market value include price handbooks and expert testimony — qualified salesmen, independent appraisers or other dealers. See Broome, supra; Jenkins, supra; White & Summers, Uniform Commercial Code§ 26-11 (2ded. 1980). However, there are many elements in any such sale which must be considered to see if the disposition was commercially reasonable and some degree of flexibility must be allowed to assure that unfair practices do not go undetected, or that the creditor is not held to any particularly hard and fast rules. § 85-9-507 (2) states in part: “The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner.” Also, whether the collateral is sold wholesale instead of retail is not necessarily determinative of commercial unreasonableness. See Hemken v. First National Bank of Litchfield, 76 Ill. App. 3d 23, 394 N.E.2d 868 (1979); White & Summers supra, § 26-11. Any difference between the fair market value and the price actually received, however, is ordinarily a material consideration, but this fact must be examined in light of all aspects of the sale to determine commercial reasonableness.

The case is remanded for findings not inconsistent with this opinion.

Adkisson, C.J., and Purtle, J., dissent.

John I. Purtle, Justice,

dissenting. I disagree with the majority because I think it has unduly complicated the procedure for repossession of chattels. Also it has added trouble, time and expense to the debtor’s already existing problems.

Arkansas Stat. Ann. § 85-9-504 (1) (a) (Supp. 1988), a part of the Uniform Commercial Code which has been adopted in Arkansas, allows the expense of retaking, holding, preparing for sale and selling collateral to be deducted from the proceeds of the sale before crediting the balance to the debtor’s account. The debtor is then liable for any remaining deficiency.

We have not considered the factual situation before us in any previous opinion. The question before us is whether the difference in the trade-in allowance and wholesale price received by the dealer is a commercially reasonable expense incurred in the repossession and disposition of the collateral. There is no dispute that appellant received the required notice of intended sale of his repossessed vehicle. Neither is there any dispute that he did not receive notice of the proposed sale of the trade-in unit. According to the provisions of Ark. Stat. Ann. § 85-9-504 (3) (Supp. 1983) the sale or disposition of the collateral may be as a unit or in parcels “but every aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable.” Brown v. Ford, 280 Ark. 261, 658 S.W.2d 355 (1983).

It is common practice for automobile dealers to either discount the list price of a vehicle or make an over-allowance for the buyer’s trade-in vehicle. In the case before us the creditor listed the repossesed vehicle at a price higher than the remaining balance of the debtor and also made an over-allowance for a trade-in on the repossessed unit. If the dealer had allowed the new buyer $1,200 trade-in, which he now argues is the real value of the vehicle, the deficiency would have been obvious and a proper charge against the debtor. However, when the contract shows on its face that the repossessed collateral sold for a stated price I think the debtor is entitled to credit in that amount. If creditors were allowed to make just any allowances for trade-ins it could easily lead to abuse. A dealer or his agent could sell at any price to a relative or friend and the debtor would have to pay the difference. The debtor had the right to rely on the dealer to dispose of his repossessed vehicle in a commercially reasonable manner. An inflated trade-in is not a commercially reasonable sale especially when the debtor is the one who eventually pays the difference. In order to avoid what may seem to be a pitfall a creditor need only make the record speak the facts. This over-allowance is another incident of doing business and is not a part of the cost or expense of retaking and disposing of the collateral. A rule applied to all automobile sales and repossessions alike is not discriminatory. The argument that this rule would disrupt the repossession procedures and cost the debtor in the long run is not logical. I would require the sale transaction disposing of a repossessed item to speak the truth. The procedure mandated by the majority opinion will require a debtor who has already lost his property because he could not pay for it to go deeper into debt by hiring a lawyer or getting stuck for an over-allowance on a trade-in or both.

Adkisson, C.J., joins in this dissent.

      (1). . .The proceeds of disposition shall be applied in the following order:
      (a) The reasonable expenses of retaking, holding, preparing for sale, selling and the like and, to the extent provided for in the agreement and not prohibited by law, the reasonable attorneys’ fees and legal expenses incurred by the secured party.

      For further discussion on the problems and considerations of this issue, see White & Summers, supra, § 26-11.


author: Steele Hays, Justice.

text:
    James Robert NUNLEY v. Doyle ORRELL and Billy WELLS
    84-72
    670 S.W.2d 425
    Supreme Court of Arkansas
    Opinion delivered June 4, 1984

      Beth Gladden Coulson, for appellant.

      Mobley ir Smith, by: William F. Smith, Jr., for appellee.
   Steele Hays, Justice.

This is a damage suit for personal injuries. The single issue raised on appeal is whether the trial court committed reversible error in granting a defense motion for a directed verdict at the end of appellant’s proof. We find no error.

The ruling principle, often stated, is that on appeal the evidence of the party against whom a motion for a directed verdict is granted will be given its highest and strongest probative value, with all reasonable inferences allowable. Farm Bureau Mutual Ins. Co. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982). The motion should be granted only when the proof, viewed accordingly, would not support a verdict. St. Louis Southwest Railway Company v. Britton, 107 Ark. 158, 154 S.W. 215 (1913).

James Nunley, appellant here and plaintiff below, left home on his motorcycle about 8:00 one morning to attend school. He saw the defendant, Doyle Orrell, pass by some five or ten minutes earlier driving a log truck belonging to the defendant, Billy Wells. Nunley had not gone far when he entered a curve, lost control of his motorcycle and landed in a ditch, sustaining the injuries complained of. He was unable to say what caused the accident. There was both oil and gasoline on the highway at the point where the accident occurred and Nunley’s motorcycle was leaking gas and oil as a result of the damage. Nunley found oil on his clothing afterwards, which could have come from the motorcycle. Nunley was going fifty miles an hour when he entered the curve, which was posted by Highway Department signs at a recommended speed of thirty-five miles per hour.

Nunley called Doyle Orrell to the stand to testify that he had developed an oil leak some two miles beyond the point of Nunley’s accident and had stopped the log truck immediately when the warning light came on. Orrell summoned help and replaced an oil line and five gallons of oil. The oil line was not merely a leak but a complete break. He had never experienced an oil leak before. He had checked the oil that morning and the truck was not leaking oil when he began his trip. He said the warning signal comes on immediately when a loss of oil pressure occurs and that he stopped immediately when the light came on. He lost a lot of oil when he pulled over. He did not know if he had lost oil on the road, “but there was some there.” The truck motor was not damaged by the oil loss and because he was heavily loaded he believed the motor would have been damaged if he had traveled as much as two miles after the leak began. Numerous other trucks were using the highway that morning. Junior Davis drove by the point of Nunley’s accident some time later and saw a dark substance covering one lane of the highway which he assumed was oil. He said the oil could have come from the motorcycle or other vehicles.

When Nunley rested, the defending appellees moved for a directed verdict for lack of evidence that either defendant was negligent. The trial judge, sitting as a jury, granted the motion with the comment that there was no proof that the defendants dropped oil at the spot where the accident occurred. He noted that the evidence that oil was there was speculative, and there was nothing to tie the defendants to that oil merely because an oil leak had occurred two miles down the road.

Appellant submits that the trial court failed to give his proof the high probative value which our many cases on the subject call for. The arguments are not convincing. While it might be possible to draw from appellant’s proof the inference that it was oil at the site of appellant’s accident and, further, that it was oil from the appellees’ truck and not from the motorcycle, though such circumstantial evidence as there was was essentially inconclusive. But after surmounting that, two larger obstacles remain: 1) There was no proof from which an inference of negligence could be drawn — that Doyle Orrell failed to exercise due care in that he knew, or should have known, that oil was leaking from his truck; and 2) there was no proof, direct or circumstantial that the proximate cause of the mishap was oil, rather than speed, misjudgment, or some other cause, as the appellant was wholly unable to explain why he lost control of the motorcycle. AMI 203, 301.

Affirmed.


author: P. A. Hollingsworth, Justice.

text:
    Virgil DAUGHHETEE v. Ruby SHIPLEY, Nancy JONES, Brenda CARROLL, Jo SHIPLEY, Allen SHIPLEY and Steve SHIPLEY
    84-50
    669 S.W.2d 886
    Supreme Court of Arkanssa
    Opinion delivered June 4, 1984

      David Throesch, for appellant.

      Burris & Berry, for appellees.
   P. A. Hollingsworth, Justice.

This case presents two questions on appeal; one on the issue of standing and one on the method of ascertaining damages to a vehicle after a collision.

One of the appellees, Allen Shipley, was driving a truck owned by his father, Ray Shipley, when he hit a cow belonging to the appellant, Virgil Daughhetee. Subsequent to the accident, but prior to the instigation of this lawsuit, Ray Shipley died of unrelated causes. His heirs, the appellees, brought suit against the appellant for $1,666.00, the estimated cost of repairing the vehicle. The appellant filed a motion to dismiss the lawsuit contending that the appellees, as heirs at law of Ray Shipley, had no standing to bring this suit on his behalf. Instead, the appellant argued that the decedent’s estate should have brought the action. The appellant also filed an amended answer, reserving his grounds for dismissal, and alleging contributory negligence on the part of Allen Shipley which, he claimed, was imputed to Ray Shipley. The appellant filed a counterclaim seeking $300 as the value of the cow. The trial judge denied the motion to dismiss; dismissed the appellant’s counterclaim; and found in favor of the appellees for $1,666.00. It is from that decision that this appeal is brought. This appeal comes to us under Sup. Ct. Rule 29(l)(o) as it presents a question in the law of torts.

The appellant’s first argument is that the appellees had no standing to bring this lawsuit. The appellees in their brief candidly admit that “the more ritualistic procedure” would be to appoint a personal representative for the decedent and have that representative sue on behalf of the estate. The appellees argue, however, that if it was error for the heirs to bring the suit, it was harmless error and did not affect the verdict of the court.

The appellant maintains that it was not harmless error. In support of this allegation, he argues that the purpose behind the statute requiring the estate of a decedent to bring suits on his behalf, Ark. Stat. Ann. § 27-901 (Repl. 1979), is to allow creditors of the estate access to any assets gained by such an action. The statute authorizing heirs to maintain suit on behalf of a decedent is Ark. Stat. Ann. § 27-907 (Supp. 1983). It applies only to wrongful death situations. Section 27-907 allows the heirs to sue for wrongful death because the loss is personal to them. This same rationale is why the estate of a deceased must sue for “wrongs done to the person or property” because the loss was personal to the decedent and not to his heirs.

We agree. Ray Shipley’s heirs had no standing to bring this lawsuit. It is not harmless error when the wrong parties are allowed to institute a legal action. The fact that they prevailed makes obvious the prejudice suffered by the appellant. Although the evidence presented at trial would no doubt be the same had the estate brought the action, one key element is missing: none of the appellees were inj ured by any action of the appellant since none of them owned the truck which hit the appellant’s cow. It is a fundamental principle that the:

courts are instituted to afford relief to persons whose rights have been invaded, or are threatened with invasion, by the defendant’s acts or conduct, and to give relief at the instance of such persons; a court may and properly should refuse to entertain an action at the instance of one whose rights have not been invaded or infringed, as where he seeks to invoke a remedy in behalf of another who seeks no redress.

59 Am. Jur. 2d Parties § 26 (1971). Furthermore, it is a general rule that “[I]f an injury is done to personal property, the right of action is in the then owner alone, and not in any subsequent purchaser or successor in the title.” Id. § 29. Therefore, we reverse as to this point for lack of standing of the appellees. Because the issue is likely to arise on retrial, we will address the appellant’s second argument.

The appellant’s second point concerns the damages to the vehicle which were the basis for the award to the appellees. The award in this case was based on estimates obtained by the appellees as to the cost of repairing the vehicle. The appellant maintains that the trial court erred by not granting his motion for directed verdict at the close of the appellees’ case. The motion was based on the failure of the appellees to prove accurately the damages and the lack of testimony on the condition of the truck before the accident ocurred. Furthermore, the appellant maintains that there was no evidence that the estimates were reasonable or that the repairs were necessitated by the collision. We agree.

Damages were established at trial by the testimony of two witnesses, both of whom are mechanics. The first mechanic testified that he made an estimate of $1,701.51 to repair the pickup truck. On cross-examination, the mechanic was unable to identify the year model of the truck, the number of miles registered on the odometer, the truck’s condition before the wreck or the market value of the vehicle. When asked if it was possible that the truck might not bring as much as the amount quoted to fix it, he replied, “It’s possible, yes, sir.” The second mechanic testified that the truck was damaged in the front and that repairs would cost $1,708.00. On cross-examination, he testified that he did not know the value of the vehicle before the wreck, how many miles it had on it, or its pre-accident condition. Both estimate sheets, which were introduced into evidence, described front end damage to the truck consistent with hitting an object. None of the appellees testified, however, about the condition the truck was in before the accident, which presumably they would have known.

It has long been the rule in Arkansas that the measure of damages for damage to personal property is the differernce in the fair market value of the property immediately before and immediately after the occurrence. AMI Civil 2d, 226. The reasonable cost of repairs may be considered in determining this difference. Id. In Golenternek v. Kurth, 213 Ark. 643, 212 S.W.2d 14 (1948), we held that, “In theabsence of other competent proof of market value, we have held that the difference in market value before and after the collision may be established by a showing of the amount paid in good faith for the repairs necessitated by the collision.” Similarly, in Beggs v. Stalnaker, 237 Ark. 281, 372 S.W.2d 600 (1963) we held that where the jury was presented with the best evidence available, there, competent appraisals of the market value of the car before and after the collision, and the car owner’s testimony of what she had paid so far in repairs, then the jury was allowed to consider the cost of those repairs in assessing property damages.

The measure of damages quoted above, the difference in market value before and after the accident, is also required under Ark. Stat. Ann. § 75-919.1 (Repl. 1979). No mention is made in the statute about considering the cost of repairs. In Kansas City Southern Ind. v. Stewman, 266 Ark. 544, 587 S.W.2d 12 (1979), we held that where estimated cost of repairs was introduced, testimony about the value of the automobile several years prior to the accident and one year after the accident was insufficient under § 75-919.1 since there was no evidence of the car’s value immediately before and after the accident.

Here, there was no testimony on the value of the vehicle, merely two estimates by two mechanics on the cost of repairs. There was also no direct testimony about what damage was done to the truck. There was merely the allegation that the truck hit a cow and sustained front end damage for which two estimates were supplied for various kinds of front end work. Whether the amount in the estimate was reasonable, whether the repairs were necessitated by the collision, Golenternek, supra, and whether this was the best evidence available of the damage, Beggs, supra, is not clearly established by the record. We are of the view that the court erred in awarding damages in the amount of $1,750.00 and reverse.

Reversed.