author: Donald L. Corbin, Justice. David Newbern, Justice,

text:
    Jack Wayne TEAGUE v. STATE of Arkansas
    CR 96-1500
    946 S.W.2d 670
    Supreme Court of Arkansas
    Opinion delivered June 2, 1997

      Robert S. Blatt and Timothy C. Sharum, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Jack Wayne Teague appeals the judgment of the Crawford County Circuit Court convicting him of two counts of aggravated assault and sentencing him to serve consecutive terms of six years’ imprisonment on each count. This appeal presents issues involving our interpretation of constitutional and statutory provisions, thus our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (17) (as amended by per curiam July 15, 1996). Appellant raises three points on appeal, two of which address allegations of error in the sentencing phase of the trial and one which pertains to the guilt phase. We find no error and affirm.

Allegations of Error Pertaining to Guilt

Appellant was charged with the aggravated assault of Rita Teague, Appellant’s ex-wife, and Donald Stout, Teague’s fiance. Appellant argues that it was error for the trial court to allow the State to present the testimony of Bonnie Coleman, Teague’s mother, concerning Appellant’s threats to Teague during the time he and Teague were separated, but before they were divorced. Appellant objected below on the ground that the evidence was inadmissible because it was too remote in time from the date of the crimes and that it was unclear from the witness’s testimony when the threats actually occurred. The prosecutor responded by making a stipulation that there was a period of five and one-half months between the couple’s separation and divorce. Appellant maintained that the evidence was still too remote, but the trial court overruled the objection.

Evidence may be relevant even though it is somewhat remote in time from the occurrence of the crime. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994) (citing Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991)). A trial court is accorded wide discretion in evidentiary ridings and we will not reverse such rulings absent a manifest abuse of discretion. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 117 S. Ct. 246 (1996).

Appellant’s charges of aggravated assault stemmed from his actions of firing a gun at both victims a mere eighteen days after Teague had obtained a divorce from Appellant. The testimony presented by Teague’s mother established that she had frequent contact with Appellant after he and Teague had separated and that Appellant made statements “all the time” that he was going to kill Teague. Teague’s mother also testified about one particular incident during the separation when Appellant had stated that he was going to hang Teague with a rope from a tree and “gut her like a deer.” This testimony was clearly relevant to Appellant’s intent and state of mind at the time of the offenses and was not so remote in time to render it irrelevant to the crimes with which he was charged. Appellant has thus failed to demonstrate that the trial court abused its discretion in admitting the testimony.

Appellant additionally argues that the evidence was inadmissible because the prosecutor failed to lay a proper foundation as to what point in time the alleged threats were made and that the testimony should have been excluded pursuant to A.R.E. Rule 403 because it was unfairly prejudicial. We do not review these issues, as they are raised for the first time on appeal. Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997).

Allegations of Errors in Sentencing

As to the first allegation of error in sentencing, Appellant argues that the trial court erred in instructing the jury on parole and transfer eligibility in accordance with AMI Crim. 2d 9401. Appellant argues that parole is a matter for the executive branch and that instructing the jury on parole eligibility, as provided in Ark. Code Ann. § 16-97-103(1) (Supp. 1995), violates the doctrine of separation of powers expressed in Article 4, §§ 1 and 2, of the Arkansas Constitution.

The State contends that Appellant’s constitutional challenge is without merit because neither section 16-97-103(1) nor AMI Crim. 2d 9401 infringes upon the executive’s authority to determine which eligible inmates are actually paroled. It is well established that statutes are presumed to be constitutional and the burden of proving otherwise rests with the party challenging the statute. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). All doubts are resolved in favor of constitutionality. Allen v. State, 327 Ark. 350, 939 S.W.2d 270 (1997).

Recendy, in two separate cases, this court had the opportunity to review similar arguments concerning a trial court’s ability to instruct juries as to the law of parole and transfer eligibility. See Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997); Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997). We held in both cases that since the enactment of our criminal code in 1975, this court has repeatedly recognized that sentencing is controlled by statute. We also concluded that in 1993, with the passage of Act 535, the General Assembly made substantial changes in the procedures governing jury trials in criminal cases, thereby providing for separate consideration of a defendant’s guilt and punishment. In neither of those cases, however, was the issue raised that section 16-97-103(1), which was included in Act 535, was unconstitutional because it violated the doctrine of separation of powers.

Article 4, § 1, of our constitution provides that the powers of the government of this State are divided among the legislative, executive, and judicial departments. Article 4, § 2, provides: “No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” (Emphasis added.) Section 16-97-103 provides in pertinent part:

Evidence relevant to sentencing by either the court or a jury may include, but is not limited to, the following, provided no evidence shall be construed under this section as overriding the rape shield statute, § 16-42-101:
(1) The law applicable to parole, meritorious good time, or transfer[.]

Appellant contends that section 16-97-103(1) violates Article 4 because it is a directive from the legislature to the judiciary involving powers reserved to the executive. Appellant contends further that the possibility of a defendant’s parole is too speculative a proposition for the jury to properly consider. In support of his argument, Appellant relies on this court’s language in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), that the subject of parole eligibility “is entirely alien to a judicial proceeding since it is handled entirely by another department of government, the executive.” Id. at 289, 472 S.W.2d at 92.

The State directs our attention to the United States Supreme Court’s decision of California v. Ramos, 463 U.S. 992 (1983), in which the Court upheld California’s practice of informing juries that a sentence of life imprisonment without the possibility of parole may be commuted by the governor to a sentence that includes the possibility of parole. The Court reasoned that the instruction given was a correct statement of the law and that such an instruction “does not preclude individualized sentencing determinations or consideration of mitigating factors, nor does it impermissibly inject an element too speculative for the jury’s deliberation.” Id. at 1013. The Court held further that “the wisdom of the decision to permit juror consideration of possible commutation is best left to the States.” Id. at 1014. The State argues that the citizens of this State, through their elected legislators, have indicated their desire for truth in the sentencing of criminal defendants with the enactment of section 16-97-103(1). We agree.

This court’s decision in Andrews, 251 Ark. 279, 472 S.W.2d 86, does not warrant our declaration that section 16-97-103(1) is unconstitutionally violative of the doctrine of separation of powers. In the first instance, the decision in Andrews is of little or no precedential value, as that case was decided before the enactment of this State’s criminal code in 1975 and before the passage of Act 535 in 1993, which provided for bifurcated trials in criminal cases as well as the introduction of evidence related to parole and transfer eligibility during the sentencing phase of those trials.

In the second instance, the public policy of this State has changed considerably from the time Andrews was decided to reflect the General Assembly’s desire for truth in sentencing. In addition to our constitution, the public policy of this State is found in its legislation. Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1975). It is within the power of the legislature, rather than the courts, to declare public policy. Nabholz Constr. Corp. v. Graham, 319 Ark. 396, 892 S.W.2d 456 (1995). With the passage of Act 535 the legislature has declared the public’s desire for truth in sentencing.

In short, we are not persuaded by Appellant’s argument that the act of instructing the jury as to the powers possessed by the legislative and executive departments violates the doctrine of separation of powers. We are not convinced that it is error to inform the jury as to the correct state of the law regarding parole and transfer eligibility. Article 4, § 2, prohibits any one department of government from exercising any powers belonging to another department. The fact that the jury may take into consideration when a person convicted of a certain class of felony is eligible for parole or transfer is in no way a usurpation of the executive department’s power and authority to decide when an individual defendant should be released. We thus conclude that neither section 16-97-103(1) nor AMI Crim. 2d 9401 is violative of the constitutional doctrine of separation of powers provided in Article 4, §§ 1 and 2, and we affirm the ruling of the trial court.

For his next allegation of sentencing error, Appellant argues that the trial court erred in running the sentences on each of the two charges consecutively because the court failed to use its discretion pursuant to Ark. Code Ann. § 5-4-403 (Repl. 1993). The State argues that Appellant failed to make this specific objection below and is thus precluded from arguing it on appeal. Although we are not persuaded by the State’s procedural argument, we nonetheless find no error with the trial court’s decision to run the sentences consecutively.

During argument in the sentencing phase of Appellant’s trial, the prosecutor asked the jury to note on the verdict forms whether it was the jury’s desire that the sentences run concurrently or consecutively. The jurors did as the prosecutor requested, indicating on the verdict forms that they wanted the sentences to run consecutively. The trial court then sentenced Appellant accordingly:

Alright, in keeping with the verdict of the jury, Mr. Teague, this Court hereby sentences you, in the case of Donald Stout, sentences you to 6 years in the Arkansas Department of Corrections [sic]. And, in the Rita Teague case, 6 years in the Arkansas Department of Corrections [sic]. Those sentences, in keeping with the verdict and recommendation of the jury, will be run consecutive.

The question of whether sentences should run consecutively or concurrendy lies solely within the province of the trial court. Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996). The appellant assumes a heavy burden of demonstrating that the trial judge failed to give due consideration to the exercise of his discretion in the matter of the consecutive sentences. Id. We will, however, remand for resentencing when it is apparent that the trial court did not exercise its discretion. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985).

Appellant relies on the holding in Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980), where this court remanded the case for resentencing based on the trial judge’s comments indicating that it was the custom of the trial court to run multiple sentences consecutively. In that case, the trial judge stated in pertinent part:

I am reminded of Judge J. Smith Henley in federal court, where the federal courts do all the sentencing, and all the guilt or innocence is determined by the jury. ‘If you’ve got a legitimate defense, come over here and argue it. It won’t cost you anything. But if you come over here and waste my time, the jury’s time and the taxpayer’s money, it may very well cost you something.’
I’m not saying that’s what I’m doing. It’s my customary rule to run consecutive sentences imposed by jurors, not because it’s an expense to the county and not because someone elects to do that; it’s just my judgment in the matter that generally that’s what the jury intends to do.

Id. at 881, 606 S.W.2d at 595 (emphasis added).

We do not agree with Appellant that the trial judge did not exercise any discretion in running Appellant’s sentences consecutively. We view the trial judge’s comments as being reflective of the sentence the jury had recommended, as opposed to the trial judge’s comments in Acklin, which indicated that the trial judge always ran sentences consecutively without any consideration to the individual defendant. We are further persuaded that the trial judge in this case properly exercised his discretion in hearing and considering Appellant’s objection to the consecutive sentences and then overruling the objection. Simply put, Appellant has failed to meet the heavy burden of demonstrating that the trial judge failed to use due discretion in sentencing him to consecutive prison terms.

Affirmed.

Newbern and Thornton, JJ., dissent.

David Newbern, Justice,

dissenting. The separation of powers doctrine requires that this conviction be reversed and the case be remanded for resentencing. The Constitution of Arkansas provides, “No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” Ark. Const, art. 4, § 2. The statute which allows a jury to be instructed with respect to possibilities of parole permits the judiciary to impinge upon the executive parole function and is thus unconstitutional.

In Scarber v. State, 226 Ark. 503, 291 S.W.2d 241 (1955), jurors inquired of the Judge whether the defendant could “get out” if he were given a life sentence. The Judge responded that clemency is strictly an executive function not to be considered by them. We affirmed on the basis that the remark by the Judge was “complete and correct.” Although we did not mention the Constitution in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), our opinion, authored by Chief Justice Harris, offered a clear allusion to the separation of powers doctrine as follows:

This [parole information] is certainly not a question, the answer to which must be known, before the members of the jury can discharge their duty. Their duty is to determine, within the Emits of the statute, the punishment that should be meted out for the crime that has been committed, and such judgment should not be influenced by any event that might occur at some time in the future. The subject matter is entirely alien to a judicial proceeding since it is handled entirely by another department of government, the executive. [Emphasis supplied.]

We reaffirmed the Andrews decision in Bush v. State, 261 Ark. 577, 550 S.W.2d 175 (1977), a case decided after our Criminal Code of 1975 had come into effect. In the Bush decision, the issue became most serious in a capital murder case. The jurors were “hopelessly” deadlocked. The judge, at the instance of the parties, committed the mistake of speaking privately with the jurors and explaining, in response to a juror’s question, the Governor’s pardoning power. He reported that he told the jurors “that the legislature could not take away the governor’s constitutional pardoning power.” The jurors within five minutes thereafter returned a sentence of life without parole. Justice George Rose Smith wrote:

The motion for a new trial should unquestionably have been granted. . . . That the discussion took place at all must be regarded as prejudicial error, for, despite some inconsistencies in our earlier opinions, we made it unmistakably plain in Andrews v. State, . . . that jurors are not concerned with the parole system and consequently should not be given even completely accurate information upon that subject. Here it is a reasonable inference that the jurors would not have returned their actual verdict had they not been given [the Judge’s] explanation of the governor’s pardoning power.

Courts of other jurisdictions in which sentences have been recommended or passed upon by juries have also disapproved making the parole or clemency possibilities a factor in sentencing. References to the separation of powers doctrine have been specific. In Kemp v. State, 632 P.2d 1239 (Okla. Cr. App. 1981), the Oklahoma Court of Criminal Appeals approved the following language uttered by a trial judge upon being asked by jurors about the parole rules in that state:

BY THE COURT: . . . The things you are asking in your question, I assure you if they were proper considerations, I would have instructed you about them. I have given you everything that is proper for you to consider. Let me just state a little bit further that our system of government divides the government into three separate functions.
One is the executive, the other is the legislative, and the other is the judiciary. The question you are asking is proper for the executive branch of government, not the judiciary.
All you need do is, in this stage of the proceedings, fix what you perceive to be a proper sentence. Let all other considerations remain to the executive later. Do what you think is right and forget about it, please. With that in mind, please retire again and let us know when you have a verdict.

In Thompson v. State, 47 S.E.2d 54 (Ga. 1948), jurors deliberating a capital murder sentence returned to the courtroom and asked about eligibility for parole in the event of a life sentence. The Judge replied that he did not know the current parole board rules, and he said further that the rules could change at any time, so it might be useless for the jurors to know them. From the opinion of the Georgia Supreme Court it appears that the Georgia law was that if the jurors returned a guilty verdict with a recommendation of mercy a life sentence might be imposed. Without such a recommendation the sentence would be death. When the question was asked, the jurors were divided on the sentence. After the question was answered, they agreed on a guilty verdict without a recommendation of mercy. In reversing the conviction, the Court wrote:

Under our constitutional form of government, the legislative, judicial, and executive powers shall forever remain separate and distinct. Constitution, art. 1, sec. 1, par. 23. It is therefore improper for a judge in the trial of a person charged with murder to state or intimate what action could be taken in the future by a separate and distinct branch of the government in regard to the determination of whether or not a person sentenced to life imprisonment should be granted freedom and be permitted to come in contact with society. Where, as in this case a question is propounded by a juror that involves the functions of a separate and distinct branch of the government, the jury should be told that such matters can not be the subject of any instruction by the court. The instruction given was prejudicial and operated as an illegal influence against a recommendation for mercy by the jury, and a new trial must be granted.

Mr. Teague’s argument obviously cannot be answered by a mere reference to Ark. Code Ann. § 16-97-103(1) (Supp. 1995). The statute, of course, may not provide a procedure that violates the Constitution.

In conclusion, it must be pointed out that the majority opinion uses the phrase “truth in sentencing” without explaining what it means. If it is suggested that a jury can, by being told of the parole and clemency possibilities, better predict how much time a defendant will spend in prison and tailor a sentence with those functions in mind, then the majority may be inspired by the phrase, but it is in fact badly misled. An attempt to reach a conclusion, based on such information, as to the time an inmate will be incarcerated is an exercise in speculation. As the majority would surely concede, one cannot predict how much “good time” a prisoner may earn any better than one can predict how a prisoner will behave in prison. One cannot predict how a parole board might react to the prisoner when parole consideration is appropriate. Nor can one predict the information the parole board might have before it when that time comes.

Our earlier cases got it right, both from the practical and the legal points of view. Now that we have, for the first time, an opportunity to resolve this question as a constitutional matter, we should recognize the obvious overlap of powers permitted by § 16-97-103(1) and hold it to be in violation of Ark. Const, art. 4, §2.

I respectfully dissent.

Thornton, J., joins in this dissent.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Jason SMITH v. STATE of Arkansas
    96-1180
    946 S.W.2d 667
    Supreme Court of Arkansas
    Opinion delivered June 2, 1997

      William R. Simpson, Jr., Public Defender, by: C. Renae Ford, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Jason Carlyle Smith appeals the trial court’s denial of his motion to transfer multiple charges brought against him to juvenile court. We agree with the trial court’s decision and affirm.

On March 6, 1996, the State charged Smith, Michael Anthony McCurley, and Timothy Lee Holt with 45 counts that stemmed from a rash of residential burglaries in Pulaski County. The counts against Smith included seventeen charges of residential burglary, seventeen charges of theft for assorted values, and one charge of criminal attempt to commit burglary. A second information was later filed to add one charge against Smith for theft by receiving.

On May 7, 1996, a hearing on the motion to transfer the case was held. Detective Jim Potter of the Pulaski County Sheriffs Department testified for the State. He described a series of residential burglaries in one particular area of Pulaski County where typically a door would be kicked in and pillowcases would be used to carry items out of the residence. Items stolen included television sets, V.C.R.’s, jewelry, stereos, and weapons. Detective Potter told the trial court that the Sheriffs Department was alerted and deputies were dispatched to an address where Smith and McCurley were caught prior to entering a residence. He further testified that after Smith was read his Miranda rights, he was cooperative. Smith admitted to the officers that he had committed twelve burglaries and admitted that the value of the property taken was $46,603. Detective Potter added that Smith was born on May 17, 1978, making him almost age 18 at the time of the hearing. The other two defendants were ages 20 and 24. Only a small amount of the property stolen had been recovered.

The defense called two of Smith’s aunts as witnesses. Shirley Dean Austin, Smith’s great aunt, testified that Smith had been working on his GED while in detention and was also attending Bible Study. She stated that Smith could live with her because they had always gotten along and had never had problems. She added that she would give him transportation to work and that there was a school nearby where he could continue his GED studies. She further announced that she could enforce any restrictions placed on him.

Sharon Kaye Goodman, Smith’s aunt, testified that she wanted Smith to come live with her. She also stated that she could supervise him and that she had never had any problem in getting him to follow her demands. Ms. Goodman added that Smith’s father wanted nothing to do with him and that his mother lived in Odessa, Texas, and had sent him to Arkansas to live.

Smith’s counsel argued to the trial court that there was no evidence of violence and no showing of a repetitive pattern of adjudicated offenses which would lead to a conclusion that Smith could not be rehabilitated. She specifically pointed to Smith’s family support in Arkansas, despite the fact that his parents had abandoned their responsibility.

The trial court denied the transfer motion and, in doing so, stated:

All right. The Court, more than anything else, is troubled by the number of burglaries and the amount — well, the value of the merchandise. And I do recall our having a case fairly similar to this some time ago. That individual was sent to juvenile court but, as I recall, there was a distinguishing point being that he had actually worked to help the officers retrieve most of the merchandise. Now, in this case ■— and I asked specifically that question about whether or not most of the merchandise was retrieved. It does not appear that that is the case.
And that’s one thing that concerns the Court, amongst other things. I think that under nine twenty-seven three eighteen a person can look at the character traits and mental maturity as being somehow lacking here in a situation where so many burglaries are committed and so much is taken. And I realize that there is some problems with perhaps his absence of parental guidance here. But I’m going to deny the motion to transfer.

Smith abstracts the trial court’s ruling from the bench, which presents the court’s reasons for denying the motion to transfer. He does not abstract two one-sentence orders denying two motions to transfer. The State does not raise a violation of Supreme Court Rule 4-2. Under these circumstances, we do not deem the abstract to be flagrantly deficient.

Smith first complains that the trial court erred in denying his motion. In making its decision, the trial court considered the following statutory factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts;
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Ark. Code Ann. § 9-27-318(e) (Supp. 1995). In making its determination, the trial court is not required to give equal weight to each of these factors. Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996); Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994). However, if the trial court decides to try the juvenile as an adult, its decision must be supported by clear and convincing evidence, and the trial court’s decision will not be overturned unless it is clearly erroneous. Ark. Code Ann. § 9-27-318(1) (Supp. 1995); Booker v. State, supra; Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995).

Smith offers four reasons on appeal why the trial court was clearly erroneous in failing to transfer the case to juvenile court: (1) he is a good candidate for rehabilitation as evidenced by his cooperation with law enforcement officers and his family support; (2) there is no repetitive pattern of adjudicated offenses; (3) no violence was associated with the crimes; and (4) Smith, a minor, was influenced by his older accomplices, ages 20 and 24. The State responds that the trial court was not clearly erroneous in its finding because the crimes charged were serious and because Smith has now passed his eighteenth birthday.

This court has recently acknowledged that the age of the juvenile can be a critical factor in determining whether rehabilitative services are available at the juvenile level. See Maddox v. State, 326 Ark. 515, 931 S.W.2d 438 (1996); Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996); Brooks v. State, supra; Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996). See also Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). At this writing, Smith is 19 years old, and the juvenile services available to him are virtually nonexistent. See Ark. Code Ann. § 9-28-208(d) (Supp. 1995); Hansen v. State, supra. Moreover, the charging information coupled with Detective Potter’s description of the crimes confirms that the crimes, although property crimes, were intrusive to the victims and serious. In light of these two factors, the trial court was not clearly erroneous in denying transfer to juvenile court.

Smith also contends that he overwhelmingly met his burden to justify transfer to juvenile court and that the State failed to show that he could not be rehabilitated. This is essentially reargument of his first point. It suffices to repeat that the State, through Detective Potter, did show Smith’s age, which has a direct bearing on his potential for rehabilitation.

Affirmed.

       The record reflects two motions to transfer to juvenile court (one filed June 28, 1996, and one filed July 3, 1996) with two one-sentence orders denying the motions on the same dates.


author: Ray Thornton, Justice.

text:
    Vernon FISHER v. VALCO FARMS, a Partnership; Danny McCollum; and Air-Aids, Inc., a Corporation
    96-661
    945 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered June 2, 1997

      Mike Everett, for appellant.

      Fletcher Long, Jr., for appellees.
   Ray Thornton, Justice.

A cotton crop belonging to appellant Vernon Fisher was damaged by an agricultural chemical that drifted onto his cotton. Mr. Fisher brought an action against appellees, Valeo Farms, Danny McCollum, and Air-Aids, Inc., claiming that their negligence in applying the chemical, 2,4-D, to a rice field belonging to Valeo Farms by cropdusters operated by Air-Aids, Inc., caused damage to appellant’s cotton crop located two miles north of the rice field. The jury returned a verdict finding that appellees were not negligent.

Appellant moved for a new trial alleging that irregularities existed in the proceedings and that the verdict was clearly contrary to the preponderance of the evidence. The trial court did not rule on this motion and it was deemed denied. On appeal, appellant also asserts that the court committed error in failing to instruct the jury on res ipsa loquitur, AMI Civ. 3d 611, and in failing to instruct on the inherent danger of 2,4-D, AMI Civ. 3d 708. Appellant also urges that the court erred in failing to grant his motion for a directed verdict on contributory negligence and in including a provision regarding appellant’s contributory negligence in the verdict forms. We have reviewed each point and have determined that the judgment should be affirmed.

We first consider appellant’s allegation that the verdict was clearly contrary to the preponderance of the evidence. We have imposed strict limitations on the exercise of a trial court’s discretion in setting aside a jury verdict and require that the verdict must be clearly against the preponderance of the evidence. Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992). In our review of the denial of a motion for a new trial, our test is whether there is any substantial evidence to support the jury verdict. Id. at 573.

In the case before us, there was substantial evidence suggesting several possible sources of the damage to appellant’s cotton. Two State Plant Board investigators testified that the chemical 2,4-D may have drifted from Valeo Farm’s rice field. However, an expert for appellees testified that most of the damage to the cotton was from other sources, including the possibility that 2.4- DB had been applied to appellant’s soybean crop adjacent to his cotton. He also told the jury that he had found containers of 2.4- DB, some of which were partially empty, in appellant’s equipment shed. He testified that while 2,4-D and 2,4-DB were chemically different, both chemicals had the same effect on cotton.

Our review shows that there was substantial evidence to support the jury verdict, and we conclude that the trial court did not abuse its discretion by not granting the motion for a new trial on the basis of this allegation.

We next turn to appellant’s argument that irregularities in the proceedings required a new trial pursuant to Ark. R. Civ. P. 59. We reverse a trial court’s decision granting or refusing a new trial only where an abuse of discretion is shown. Clayton v. Wagon, 276 Ark. 124, 633 S.W.2d 19 (1982).

First, appellant claims that the jury verdicts did not reflect the results that the jury had intended. The jury returned verdicts on interrogatories provided to them, and apparently were not told that if they found appellees were not negligent, it was not necessary to fill out other interrogatories apportioning responsibility for damages. After the jury reported its responses that appellees were not negligent, the trial court proceeded to read the jury’s responses to other interrogatories and then noted:

We should have had on here ladies and gentlemen — and I apologize — that if you answered Interrogatories One, Two, Three, and Six: No, then there wouldn’t be any need to answer the others. But we didn’t have that on here. So if you gentlemen don’t have any questions, I’m going to accept the verdicts. . . .

Although the additional interrogatories were not required to be completed, we note that the results were consistent with the verdict in that the jury apportioned 70% of the damage to the cotton crop to appellant.

It is well established that the failure to object to some irregularity in a verdict prior to the discharge of the jury constitutes a waiver of that irregularity. Northern Pac. R.R. Co. v. Urlin, 158 U.S. 271 (1895). The time to correct or clarify a verdict is before the jury is discharged. Barham v. Rupert Crafton Comm’n Co., 290 Ark. 211, 718 S.W.2d 432 (1986).

The jury was polled at appellant’s request, and nine of the twelve jurors supported the verdict. There was no objection from either party after the poll, and we conclude that the trial court did not abuse its discretion in accepting the verdict.

Appellant’s second assignment of jury irregularity requiring a new trial is the assertion that on one of the verdict forms, the jury had written “yes” two times and then crossed both of them out and substituted the word “no.” Appellant did not abstract the verdict form for our review. Our review is limited to the record as abstracted; therefore, this argument is procedurally barred. Southern Farm Bureau Cas. Ins. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996).

Appellant’s next argument for a new trial is that there was an irregularity in the proceedings because the jury returned unsigned verdict forms. Appellant claims that because the verdict forms were unsigned, the trial court was required to grant a new trial.

Arkansas Code Ann. § 16-64-119 provides the following requirements:
The verdict shall be written, signed by the foreman, and read by the court or clerk to the jury, and the inquiry made whether it is their verdict.

Ark. Code Ann. § 16-64-119(c) (1987). We have long held that the requirement that the verdict be in writing and signed by the foreman is waived when rendered in open court “and duly received without objection by either party to the cause and thereafter is duly recorded.” Hodges v. Bayley, 102 Ark. 200, 204, 143 S.W. 92, 93 (1912). We have further stated that an appellant waives any objection to the verdict when it is returned without the foreman’s signature, and the appellant is present and makes no objection. Rucker v. Cox, 200 Ark. 247, 138 S.W.2d 778 (1940).

Here, the verdict was in writing and rendered in open court, as required under Ark. Code Ann. § 16-64-119(c). However, because the verdict was “duly received without objection” and “duly recorded,” we conclude that appellant waived any objection to the requirement that the verdict forms be signed.

Appellant raises three additional assignments of error. Appellant alleges trial court error in the failure to give jury instructions AMI Civ. 3d 611 and 708 under two separate points; however, we review them together. Appellant argues that the trial court made an error of law by refusing to instruct the jury on res ipsa loquitur, AMI Civ. 3d 611, and that pursuant to Ark. R. Civ. P. 59(a)(8) he is entitled to a new trial. Appellant also claims that the evidence presented at trial was sufficient to make a fact question of whether the chemical 2,4-D is inherendy dangerous and that the trial court erred in failing to give AMI Civ. 3d 708 on that issue.

The Arkansas Rules of Civil Procedure set out the requirement for properly preserving a jury-instruction objection on appeal as follows:

No party may assign as error the giving or the failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection, and no party may assign as error the failure to instruct on any issue unless such party has submitted a proposed instruction on that issue.

Ark. R. Civ. P. 51. Under this rule, any objections must be made before or at the time the instructions are given. The burden is on appellant to make a proffer of the instruction to the trial court and to make his objections. Precision Steel Warehouse v. Anderson- Martin, 313 Ark. 258, 854 S.W.2d 321 (1993). That proffered instruction must then be included in the record and abstract to enable the appellate court to consider it. Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996). An instruction that is not contained in the record is not preserved and will not be addressed on appeal. Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989).

Here, neither the abstract nor the record contains either the AMI Civ. 3d 611 or the AMI Civ. 3d 708 instruction requested by appellant. The only record we have of this point is the following trial court comment:

THE COURT: Plaintiffs objected to refusal of the Court to give AMI 708 and 611. Defendants objected to the giving of 601 and they will amplify their objections later.
(Return to open court)

The forms as printed in AMI Civ. 3d contain numerous blanks and choices of alternative language. We cannot determine from the record whether, or in what form, these proposed instructions were proffered. Therefore, we do not reach appellant’s argument that the trial court failed to give either of these jury instructions because these points are not preserved for our review.

In his final point of appeal, appellant alleges two errors. First, appellant urges that the trial court erred in failing to grant his motion for a directed verdict, requesting that the affirmative defense of contributory negligence be stricken. Second, he argues that the trial court erred by giving an instruction on the issue of appellant’s contributory negligence and by including in the verdict form a provision allowing such a finding. We determine that neither of these arguments has merit for the following reasons.

After appellant made his motion for a directed verdict on the issue of the contributory-negligence defense, the court stated, “Let’s skip on to the next motion. I will reserve that for right now.” Although there was discussion on the issue, the abstract does not reveal that the trial court ever ruled on appellant’s motion.

It is well established that the burden of obtaining a ruling is on the movant, and any objections and questions left unresolved are waived and may not be relied upon on appeal. Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). We cannot reach this argument because appellant never obtained a ruling. It was appellant’s burden to obtain a ruling, and the absence of a ruling constitutes a waiver of this issue on appeal.

The record does not reflect that appellant made any objection to the trial court’s jury instruction on contributory negligence. To preserve the issue for this court’s review, appellant is required to make a timely objection by informing the trial judge why the instruction was wrong. Ark. R. Civ. P. 51; St. Louis Southwestern Ry. Co. v. Grider, 321 Ark. 84, 900 S.W.2d 530 (1995). In his brief to this court, appellant acknowledges this defect and claims that he “will attempt to supplement the record to show this objection as per Rules of Appellate Procedure #6.” No supplement has been received, and this issue is not preserved for our review.

We have carefully considered each of the assignments of error and conclude that the judgment should be affirmed.


author: Per Curiam.

text:
    Keith Dzhon HILLS v. STATE of Arkansas
    CR 97-540
    945 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered June 3, 1997

      Ed Webb, for appellant.
    No response.
   Per Curiam.

Appellant, Keith Dzhon Hills, has filed this Motion for Belated Appeal through his attorney, Ed Webb. On March 8, 1996, Mr. Hills’s probation was revoked and he was sentenced to serve three years in the department of correction. He filed an untimely notice of appeal on February 7, 1997.

Mr. Hills has filed a motion for belated appeal to compel the clerk’s office to accept the notice of appeal. In his motion, Mr. Hills states the notice of appeal was filed untimely due to a former employee’s clerical error in putting the wrong case number on the original notice of appeal.

It is an attorney’s duty to file the notice of appeal in a timely manner. In this case, Mr. Webb does not admit fault on his part but instead places the blame on a former employee’s clerical error. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Hicks v. State, 324 Ark. 450, 921 S.W.2d 604 (1996). Therefore, Mr. Hill’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the notice of appeal, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct. Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).


text:
    Rodney RAGLIN v. STATE of Arkansas
    CR 97-402
    945 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered June 2, 1997

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Per Curiam.

In 1990, Rodney Raglin was found guilty by a jury of murder in the first degree. We affirmed. Raglin v. State, CR 90-214 (February 25, 1991).

At the time Mr. Raglin was convicted, our postconviction remedy was embodied in Criminal Procedure Rule 36.4. Rule 36.4 required the trial court to advise the defendant at sentencing that he was entitled to file within thirty days a motion for postconviction relief if he was dissatisfied with his attorney’s representation. Raglin was so advised but did not file a motion.

At some point Raglin filed in the United States District Court two petitions seeking writs of habeas corpus which were consolidated, and on March 7, 1996, the magistrate issued an order declaring that the writ would issue in one-hundred twenty days if Raglin were not afforded a Rule 36.4 hearing in circuit court. The Order further provided that Raglin was to have the benefit of counsel at the hearing and on appeal to this court if relief were denied and an appeal taken.

Although no motion for postconviction relief under Rule 36.4 appears in the record, suggesting that the order of the federal court was allowed to substitute for a motion, a hearing was held in the trial court at which Raglin was represented by counsel. Relief was denied, and the appeal has been lodged here. Because the attorney at the hearing was relieved before the notice of appeal was filed, appellant Raglin now seeks appointment of counsel. The State urges this court to appoint an attorney so that the writ of habeas corpus will not be issued.

We grant the motion but do so only because not doing so would result in the vacation of a valid judgment which was upheld on appeal and the premature release of a defendant found guilty of a grave offense. At some point society is entitled to a expectation of finality in a criminal judgment.

There is a clear conflict between the federal action and our case law in that our case law does not allow for an untimely Rule 36.4 petition, unless the petitioner was not advised at the time of sentencing of his right to proceed under Rule 36.4. See Cherry v. State, 323 Ark. 733, 918 S.W.2d 125 (1996). Appellant was informed of his right to proceed under the rule and should not now be heard to complain because he failed to exercise that right. Moreover, this court appoints counsel in postconviction appeals only where the appellant demonstrates in the motion for counsel that there is substantial merit to the appeal. See Miner v. Furman, 318 Ark. 883, 887 S.W.2d 310 (1994). Appellant’s motion states only that “the ends of justice would best be served” if counsel were appointed. Again, we are compelled to treat appellant differently because it is the federal court’s view that the Rule 36.4 proceeding was an extension of the trial in the manner of a motion for new trial, making the petitioner entitled under the Sixth Amendment to appointment of counsel. When promulgated in 1989, Rule 36.4 was not intended as an extension of the trial, but rather as a postconviction remedy. In the Matter of the Abolishment of Rule 31 and the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. 573 (1989). We are bound to act in accordance with the magistrate’s order or permit the federal court to release the appellant who was convicted of an abhorrent crime.

Kelly Pace is appointed counsel for appellant. Our clerk is directed to set the briefing schedule for the appeal.

Motion granted.


text:
    Bobby G. THOMAS v. STATE of Arkansas
    CR 96-528
    945 S.W.2d 939
    Supreme Court of Arkansas
    Opinion delivered June 2, 1997

      Appellant, pro se.
    No response.
   Per Curiam.

In 1992, Bobby G. Thomas was found guilty in the Circuit Court of Miller County of murder in the first degree and sentenced as a habitual offender to life imprisonment. We affirmed. Thomas v. State, 315 Ark. 518, 868 S.W.2d 25 (1994). Mr. Thomas subsequently filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37 seeking to vacate the judgment. The petition was denied, and this court granted a belated appeal of the order denying relief. Thomas v. State, CR 96-528 (July 8, 1996). Appellant then sought a copy of the record to prepare his brief and an extension of time to file it. We granted an extension of time and directed that the record of the Rule 37 proceedings be forwarded to the Arkansas Department of Correction, which has custody of appellant, so that he could prepare his brief. The brief was due Saturday, January 18, 1997. On January 21, 1997,1 appellant filed the motion which is now before us seeking another extension of time to file the brief and asking that we compel the Circuit Clerk of Miller County to forward a copy of the trial record to him.

Because the trial record is on file with this court, not the circuit court, we will treat that part of the motion asking that the circuit clerk be compelled to provide appellant with the trial record as a motion to this court for access to the trial record. The motion is denied because appellant does not state that there is any specific point which cannot be raised in the postconviction appeal without the trial record, or some portion of it, being provided to him. This court will not provide a copy of a trial record to facilitate a postconviction appeal without a showing that the record is necessary; that is, the appellant must set out specific anticipated points for reversal to be contained in the appellant’s brief which cannot be properly raised without access to the trial record to prepare the abstract which underlies the points. Appellant has not made such a showing.

Appellant is granted an extension of thirty days from the date of this opinion to file the appellant’s brief.

Motion granted in part and denied in part.

1 Because the brief was due on Saturday when our Clerk’s Office is closed and Monday, January 20, 1997, was a State holiday, the motion for extension of time was timely filed.


author: David Newbern, Justice.

text:
    STATE of Arkansas, Office of Child Support Enforcement v. Terrance D. ROSS
    97-205
    945 S.W.2d 374
    Supreme Court of Arkansas
    Opinion delivered June 9, 1997

      Gordon, Caruth & Virden, by: Bart Virden, for appellant.
    No response.
   David Newbern, Justice.

In October 1992, the appellee, Terrance Ross, was ordered to pay $100 per month in child support for his two minor children. Thereafter, Mr. Ross became consistently delinquent in satisfying the obligation. Consequently, in proceedings occurring from 1994 through 1996, the Office of Child Support Enforcement (“OCSE”), the appellant, obtained judgments on the accrued arrearages, and Mr. Ross was repeatedly held in contempt. Ultimately, Mr. Ross’s driver’s license was suspended, in accordance with Ark. Code Ann. § 9-14-239 (Supp. 1995), as the result of his child-support delinquency.

In the most recent hearing with respect to the child-support obligation, the Chancellor ordered the child-support obligation suspended pending reinstatement of Mr. Ross’s driver’s license. OCSE appeals from that order. We affirm because the arguments made in favor of reversal were not made to the Chancellor.

During the hearing, Mr. Ross testified that he had lost his job on account of the suspension of his driver’s license. He indicated that he recently had found a different job but that he was only working 20 hours per week. At the conclusion of the hearing, the following colloquy occurred between the Chancellor and counsel for the OCSE:

[CHANCELLOR]: . . . The court finds that Mr. Ross is not willfully delinquent in support. That as a result of the suspension of his driver’s license his job was lost and the child support is hereby suspended until his driver’s license is restored.
[COUNSEL]: Your Honor, I believe the driver’s license was suspended because of the child support if I’m not mistaken.
[CHANCELLOR]: That’s right.
[COUNSEL]: Okay. Is — is he under some affirmative duty to—
[CHANCELLOR]: Sir?
[COUNSEL]: Will he be under some affirmative duty to get [the] license back?
[CHANCELLOR]: Maybe the Child Support Division can get [it] back for him.
[COUNSEL]: Okay. I believe he’s working 20 hours a week, but we’re still—
[CHANCELLOR]: Well, that’s not enough to sustain him — himself.
[COUNSEL]: I’ll get an order prepared to that effect, Your Honor.
[CHANCELLOR]: All right. Thank you, sir.....

According to Ark. Code Ann. § 9-14-239(b)(1)(A)(i) (Supp. 1995), OCSE must notify the Department of Finance and Administration (“DF&A”) to suspend the driver’s license of a noncustodial parent if OCSE determines (1) that the parent “is delinquent on a court-ordered child support payment or an adjudicated arrearage in an amount equal to six (6) months’ obligation or more”; and (2) that the parent has failed to “execute[] an installment agreement or make[ ] other necessary and proper arrangements” for the payment of child support. The DF&A must “immediately suspend the license ... of the noncustodial parent” upon receipt of such notification, § 9-14-239(d)(l), and the suspension must remain in effect until the OCSE notifies the DF&A to release the suspension. § 9-14-239(d)(2). See Survey of Legislation, 1995 Arkansas General Assembly, 18 U.A.L.R. L.J. 279, 349 (1996).

OCSE argues that the Chancellor’s ruling suspending Mr. Ross’s child-support obligation constitutes an. erroneous decision “not to enforce the statute” imposing the license-suspension penalty. According to OCSE, the Chancellor’s ruling should be reversed because it fails “to recognize and enforce [OCSE’s] statutory authority to suspend [Mr. Ross’s] driver’s license” and because it “coercfes] the state [not to] avail itself of its lawful right granted by A.C.A. 9-14-239 to suspend driving privileges of an individual who refuses to support [his] child in defiance of court orders.”

We decline to address the merits of these arguments because, as the colloquy quoted above reveals, counsel for the OCSE did not raise them before the Chancellor. As we said in Arkansas Office of Child Support Enforcement v. House, 320 Ark. 423, 424, 897 S.W.2d 565, 566 (1995):

[t]he rule is well-established that this court will not reverse on an issue not presented to the trial court. Hubbard v. Shores Group, Inc., 313 Ark. 498, 855 S.W.2d 924 (1993). We have also said that we will not consider arguments raised for the first time on appeal or where a ruling from the trial court has not been obtained. Mobley v. Harmon, 313 Ark. 361, 854 S.W.2d 348 (1993).

Here, counsel for the OCSE made no argument in the trial court opposing the Chancellor’s decision to excuse Mr. Ross from paying child support while he is without a driver’s license. The Chancellor was not given the opportunity to consider these arguments. Thus, we affirm the Chancellor’s decision. See Betts v. Betts, 326 Ark. 544, 546, 932 S.W.2d 336, 337 (1996) (“A nonjurisdictional argument cannot be raised for the first time on appeal.”).

Affirmed.


author: Donald L. Corbin, Justice.

text:
    Patricia LOVE v. SMACKOVER SCHOOL DISTRICT and Terry Lee, Jeff Rogers, Juanita Corley, Jerry Hegwood, and Lynn Bradley, In Their Official Capacity as Members of the Smackover School District Board of Directors
    97-20
    946 S.W.2d 676
    Supreme Court of Arkansas
    Opinion delivered June 9, 1997

      Mitchell, Blackstock & Barnes, by: Marcia Barnes, for appellant.

      W. Paul Blume, for appellees.
   Donald L. Corbin, Justice.

This is an appeal by Appellant Patricia Love of the order by the Union County Circuit Court denying the award of attorney’s fees in her case against Appellee Smackover School District involving the Teacher Fair Dismissal Act of 1983, Ark. Code Ann. §§ 6-17-1501 to -1510 (Repl. 1993). This is the second appeal of this case. In the first appeal, this court reversed the trial court’s ruling that Appellant was not a “teacher” as contemplated by the Act and remanded the case to determine the amount of compensation to which she was entitled. Love v. Smackover Sch. Dist., 322 Ark. 1, 907 S.W.2d 136 (1995). Jurisdiction of this appeal is therefore properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(10) (as amended by per curiam July 15, 1996).

Pursuant to this court’s mandate, the Union County Circuit Court held a hearing on June 19, 1996, to determine Appellant’s damages pursuant to the mandate. The trial court ruled that Appellant was entitled to judgment against Appellee for $6,893.36 plus interest. The trial court also granted Appellant reinstatement as a half-time teacher for the 1996-97 school year. Appellant requested attorney’s fees, but the trial court denied her request holding that such fees are not authorized under the Teacher Fair Dismissal Act, referring to the trial court’s previous decisions in other Teacher Fair Dismissal act cases as well as the recent decision of Piggee v. Jones, 84 F.3d 303 (8th Cir. 1996). In Piggee, the United States Court of Appeals, Eighth Circuit, held that a violation of the Teacher Fair Dismissal Act was not a breach of contract claim for which attorney’s fees may be awarded under Ark. Code Ann. § 16-22-308 (Repl. 1994).

The sole issue presented by this appeal is whether attorney’s fees are available in an action brought under the Teacher Fair Dismissal Act as contemplated by section 16-22-308. We conclude that attorney’s fees are available and we reverse the ruling of the trial court and remand this case to determine whether in this instance attorney’s fees are warranted.

The American rule, which is the rule observed in Arkansas, is that attorney’s fees are not chargeable as costs in litigation unless specifically permitted by statute. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990); Millsap v. Lane, 288 Ark. 439, 706 S.W.2d 378 (1986); see Hall v. Thompson, 283 Ark. 26, 669 S.W.2d 905 (1984); Harper v. Wheatley Implement Co., Inc., 278 Ark. 27, 643 S.W.2d 537 (1982). Section 16-22-308 provides:

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.

This court has previously determined that an action brought pursuant to the Teacher Fair Dismissal Act is a civil action within the meaning of section 16-22-308. Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995). Likewise, a claim for “labor or services” is within the meaning of the statute and attorney’s fees are allowed for such claim under section 16-22-308. City of Fort Smith v. Driggers, 305 Ark. 409, 808 S.W.2d 748 (1991). In reliance upon those two decisions, the court of appeals recently determined that the subject matter of the underlying litigation is solely dispositive of whether section 16-22-308 may be invoked. Junction City Sch. Dist. v. Alphin, 56 Ark. App. 61, 938 S.W.2d 239 (1997). In Alphin, the court of appeals reversed the trial court’s disallowance of attorney’s fees to a teacher who prevailed in an action brought pursuant to the Teacher Fair Dismissal Act, where the disallowance was based on the Act’s omission of a procedure to award attorney’s fees.

Similarly, in Hall v. Kingsland Sch. Dist., 56 Ark. App. 110, 938 S.W.2d 571 (1997), the court of appeals determined that the trial court failed to exercise discretion to either award or deny attorney’s fees and reversed and remanded to determine whether fees were warranted. In that case, the trial court had found that because the proceeding was brought pursuant to the Teacher Fair Dismissal Act, which makes no specific provision for attorney’s fees, the motion for attorney’s fees should be denied. The teachers argued on appeal that the trial court erred in finding that the Act’s failure to mention attorney’s fees prohibits consideration of an award of fees to the prevailing party. The court of appeals held that while the Act does not expressly provide for the award of attorney’s fees, an award is nonetheless permissible under section 16-22-308.

In the first appeal of the present case, this court determined that Appellant had a written contract with the school board which entitled her to rights under the Teacher Fair Dismissal Act. Love, 322 Ark. 1, 907 S.W.2d 136. We now determine that actions brought pursuant to that Act are actions in contract for labor or services such that attorney’s fees may be awarded by the trial court pursuant to section 16-22-308, the general statute authorizing attorney’s fees. We further conclude that the Eighth Circuit’s decision in Piggee, decided before this court had definitively spoken on this issue, was an erroneous interpretation of this State’s law.

Although the award of attorney’s fees is discretionary, see, e.g., Chrisco, 304 Ark. 227, 800 S.W.2d 717, here, the trial court did not exercise its discretion when it declined to award Appellant attorney’s fees. Because we conclude that attorney’s fees are recoverable in a Teacher Fair Dismissal Act action, we reverse and remand this case to the trial court to determine if an award of attorney’s fees is warranted.


text:
    Clarence WILLIAMS v. STATE of Arkansas
    CR 97-33
    946 S.W.2d 678
    Supreme Court of Arkansas
    Opinion delivered June 9, 1997

      W. Ray Nickle, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appeEee.
   Robert L. Brown, Justice.

FoEowing a jury trial, appellant Clarence WiEiams was found guEty of first-degree murder, kidnapping (2 counts), and attempted first-degree murder. He was sentenced to 20 years for first-degree murder, 40 years for kidnapping, and 12 years for attempted first-degree murder, with the sentences for kidnapping and attempted first-degree murder to run consecutively. The total term of imprisonment meted out was 52 years. He appeals on several grounds, none of which has merit. We affirm.

The State’s case at trial was essentiaEy comprised of the testimony of a co-defendant, WiEiam Hunt; a victim, Bradley Davis; and the statement taken from WiEiams by WiEiam Kucik of the FBI. WiEiam Hunt, age 20, testified that on AprE 8, 1995, he was riding with Antonio Britt and Scotty Hodges in a white Pontiac BonneviEe that belonged to a friend of Britt’s. The three men drove to Forrest City and then to Osceola where they picked up Clarence WiEiams. The four men ranged in ages from late teens to late twenties. They were driving and drinking when they were approached by two men (later identified as Bradley Davis and Jonathan Hancock, who were approximately 19 at the time) in a white truck in Blytheville. Williams was driving the Pontiac. One of the men asked Williams if he had any crack cocaine for sale. Hodges yelled that he had some and directed the two men to pull over into a parking lot. After they did so, Hodges pulled a gun on the two men and demanded their money. Britt then jumped out of the Pontiac and said that he wanted the truck. Williams unlocked the trunk of the Pontiac, and the two men were forced into the trunk.

Williams drove off in the Pontiac with Hunt and Hodges, and Britt followed in the pickup truck. At some point, Britt pulled over, and Hodges left Williams and joined Britt in the truck. Hunt remembered turning up the music at Williams’s request, but he could not remember if the title of the tape was “Lock ’em in the F***in’ Trunk.” He also could not remember if that song was played over and over. Williams led the way in the Pontiac down to the Mississippi River. Hunt testified that once they reached the river, Williams unlocked the trunk and grabbed one of the men from the Pontiac’s trunk. Britt grabbed the other captive. Britt told the men to take off their clothes. At that point, Hunt testified that Williams said: “You’ve got to kill them, they’ve seen our face, you gotta waste ’em.” Hunt testified that he urged that they not kill them. Hodges then hit one of the victims in the head with his gun, and it discharged, shooting the victim in the leg. Hodges then shot him a second time. Hunt testified that following the first shooting, he and Williams fled the scene on foot.

Hunt told the jury that only Hodges and Britt had guns and that both victims were sitting down and naked when the shooting began. Hunt said that he heard four more shots after he began running. Hunt ran back to Williams’s house, which was about five miles away, and a friend of Williams drove him to his home the next afternoon. He learned that the police were looking for him, and he turned himself in.

William J. Kucik works for the FBI in Chicago. He was informed by a Jonesboro FBI agent that a warrant had been obtained against Williams for unlawful flight to avoid prosecution. He received an anonymous tip on Williams’s location, and Williams was found in an abandoned apartment building. Williams initially told the officers that his name was Willie Morris, and he had Illinois identification to that effect. Williams eventually admitted that the name was false, and he gave a statement to Kucik while being processed. He told Kucik that he had come to Chicago three days after the incident in Mississippi County. He described to Kucik how three men came to his home the evening of April 8, 1995. The four men then rode in Britt’s car, bought alcohol, and returned to Williams’s home to drink. They next drove to Blytheville, and Britt showed Williams the liquor store that he had contemplated robbing. Williams told Britt that he did not want anything to do with the robbery. They next went to a friend’s house and then to a local nightclub in Blytheville. They left the nightclub in search of drugs but were unsuccessful.

In his continued testimony, Kucik testified that Williams told him a white truck flashed its lights at them. The four men pulled up next to the truck at a stop sign. The passenger of the truck rolled down his window and asked where he could purchase $40 worth of crack cocaine. Britt told the man to pull.over in a church parking lot. He got out of the car and took the money from the individuals. One of the group not named by Williams said the abducted men had more money, and this unnamed man and Britt forced the two men into the trunk of the car at gunpoint.

Williams told Kucik that he drove the white car and started speeding toward Osceola, hoping that the police would catch them. He said that he twice pulled over in order to let the victims out of the car but was told that nobody was leaving until they got to the river. Once at the river, Britt and the other man searched the victims. The other man was loudly playing a tape of a rap song called “I gotta Bop ’em,” and announced that he was not going to leave any witnesses. That man shot one of the victims in the head at point-blank range. The other victim tried to catch the victim who was shot, and the man fired two or three more shots in the vicinity of the victims. Britt then pulled his gun and shot, but his gun jammed. The other assailant took the gun from Britt, unjammed it, and shot at the victims four more times. Williams said he left the scene and drove the car halfway to the levee. Together with Hunt, he walked home through the woods because he was afraid that he too would be shot. Williams told Kucik that Hunt slept at his house that night and caught a ride home the next day. Williams later learned that Hunt had told his mother what happened, and she made him turn himself in to the police. Williams then fled to Chicago.

The surviving victim, Bradley Davis, also took the stand for the State. Davis, who was 21 at the time of the trial, was living in Gosnell with Jonathan Hancock on April 8, 1995. He testified that he and Hancock and two other friends were driving around in one of the friend’s white truck, drinking beer, and “using a little drugs.” They returned to their house and smoked crack cocaine. Later, Davis and Hancock went to Blytheville in search of more crack cocaine at about 1:00 a.m. In Blytheville, Davis saw four men at an intersection. He testified that though he had had quite a bit to drink, he remembered being taken from the truck at gunpoint and put in the trunk of the car. He handed one of the gunmen his empty wallet and checkbook. Before getting in the trunk, Davis saw two men with pistols and the driver of the white car, who got out to open the trunk. He said a fourth person was in the back seat of the Pontiac on the driver’s side.

Davis testified that they started driving, and periodically the men in the Pontiac would ask Davis and Hancock if they were ready to die. The kidnappers also played a rap music tape and sang with the music. The rap music described what was happening to Davis and Hancock in that the song depicted a scenario of kidnapping people, putting them in a trunk, and murdering them while stealing their car. Davis testified that the car stopped twice and that the radio was turned up so that they could not hear the conversations. The conversations sounded serious, he said, and he occasionally heard laughter. He testified that after the second stop, the assailants played the same rap song repeatedly.

Prior to the trunk’s being opened at the river, Davis remembered hearing a conversation that one of the guns was jammed and that one assailant needed bullets. When they were taken from the car, he and Hancock said their goodbyes and were told to undress. Davis told the kidnappers that they could have the truck and that he and Hancock would go on about their business. He stated that he and Hancock were told to lie down on their backs naked. Davis was then shot in the arm and rolled over. He saw Hancock get shot in the face, and he waited to be mortally wounded. Once the shooting ended, Davis could hear the attackers “getting a kick out of it.” He next heard the truck drive off.

Davis added that one of the four men did say before the shooting that they should let Davis and Hancock go, and once he was shot, Davis heard someone running off. He stated he also thought he heard another vehicle leave, but once he realized that he was not dead and got up, the white car was still there. He eventually ran toward a light on the riverbank. He woke the people in a riverboat and had them call 911. Davis was not able to identify Williams as the driver of the Pontiac.

Following the 911 call to the Blytheville Police Department, Davis was found by the deputies wrapped in a blood-stained sheet. He had been shot in the head or neck, arm, and leg. Dr. Peretti, Associate Medical Examiner, testified that Hancock died of three gunshot wounds, including two head wounds, and a blunt force head injury. He testified that one of the shots to the head was a contact wound.

The State rested its case, and Williams’s counsel moved for a directed verdict on several grounds, including insufficient proof to make him an accomplice. The trial court denied the motions. In Williams’s case in chief, he attacked inconsistencies between Davis’s testimony and his various statements to law enforcement. Williams did not testify. Defense counsel announced to the court that he intended to introduce a second statement by Williams that was given to Mississippi County Sheriffs Deputy Ed Guthrie. The court ruled that the statement was not admissible. Williams was convicted and sentenced.

I. Sufficiency of the Evidence

We first address the sufficiency of the evidence because Williams’s double jeopardy rights require a review of a challenge to the sufficiency of the evidence before a review of trial errors. Bradford v. State, 325 Ark. 278, 927 S.W.2d 329 (1996), cert. denied, 117 S. Ct. 583 (1996); Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Evidence, whether direct or circumstantial, is sufficient to support a conviction if the evidence is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Peeler v. State, supra; Dixon v. State, supra. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

Williams argues that the trial court erred in allowing the case to go to the jury because the State’s entire case hinged on accomplice liability, and there was no proof that he assisted or actively participated in the kidnappings and shootings. He argues that his mere presence, acquiescence, silence, or knowledge that a crime was being committed is not sufficient to make him an accomplice. Williams admits that Hunt testified that he opened the trunk and told Britt and Hodges to kill Davis and Hancock, but he contends that there was no other evidence of this. He further argues that there was no proof that he participated in the aggravated robbery which was used as the predicate felony under the felony-murder rule.

This court has often cited the elements required to support accomplice liability:

An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages, or coerces another person to commit the offense, aids, agrees to aid, or attempts to aid the other person in planning or committing the offense, or, having a legal duty to prevent the offense, fails to make a proper effort to prevent the commission of the offense. Ark. Code Ann. § 5-2-403 (Repl. 1993). One’s status as an accomplice ordinarily is a mixed question of law and fact. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). One’s presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990) (citing Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983).

Choate v. State, 325 Ark. 251, 255, 925 S.W.2d 409, 412 (1996), quoting King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996).

We conclude that there is sufficient proof that Williams assisted in the commission of the crimes for which he was convicted. There is testimony that he drove the car, assisted in confining the victims, and encouraged the shootings. Specifically, Hunt testified that Williams as the driver opened the trunk for Hodges and Britt to confine the victims. It is also undisputed that Williams transported the victims to the river and led the truck to the location where the shootings took place. Hunt further testified that once they arrived at the river, Williams encouraged Hodges and Britt to “waste ’em” because the victims had seen their faces. Davis testified that he was tormented by his assailants asking if he was ready to die while the song, “Put ’em in the F***in’ Trunk” was playing on the tape player. According to Davis and Hunt, only Williams and Hunt would have been in the car when the song was played. Hunt testified that he did not remember the song. Under these circumstances, the jury could well have inferred that Williams made the statements and played the song repeatedly.

We further conclude that Davis’s testimony and Williams’s statement offered sufficient corroborative proof that Williams drove the car with the victims in the trunk, played the rap music, taunted the captives, and drove them to the river in full knowledge that Britt and Hodges had guns and that an armed robbery had already been perpetrated.

We affirm the trial court on this point.

II. Second Statement

The prosecution introduced only the statement given by Williams to FBI Agent Kucik at trial. Williams attempted to introduce the second, more expansive and more exculpatory statement that he gave to Mississippi County Deputy SherifFEd Guthrie in his case-in-chief. The trial court denied introduction of the second statement. Williams argues that under Ark. R. Evid. 806 and Ark. R. Evid. 803(24), he should have been allowed to introduce the second statement to shore up his credibility, which was placed in issue by the introduction of the first statement.

Rule 806 reads:

If a hearsay statement, or a statement defined in Rule 801 [d](2)(iii), (iv), or (v), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entided to examine him on the statement as if under cross-examination.

Ark. R. Evid. 806.

The principal reason for holding that Rule 806 does not apply to the facts of this case is apparent from the rule itself. Only if the defendant’s credibility is attacked may his credibility be supported by other evidence. This is consistent with the general rule that the credibility of a witness cannot be bolstered until that witness has been impeached. See McCormick on Evidence, § 47 (4th ed. 1992). See also George v. State, 270 Ark. 335, 604 S.W.2d 940 (1980). Williams has not specifically shown where the State attacked the credibility of his first statement given to agent Kucik. It is true that Hunt’s testimony varies somewhat from Williams’s first statement, including reference to a comment made by Williams that “you gotta waste ’em.” But this inconsistency is not an attack on the credibility of Williams’s statement. We fail to see how the trial court abused its discretion in disallowing the second statement in this case.

Williams also contends that the trial court erred in refusing to allow the later statement under the residual hearsay exception contained in Ark. R. Evid. 803(24). That rule provides that a statement should not be excluded as hearsay, even where the declarant is unavailable, when the statements are trustworthy and reliable. See Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989). We question the reliability and trustworthiness of Williams’s second statement, as did the trial court. Williams knew that a co-defendant, William Hunt, had implicated him. He had every reason to give deputy sheriff Guthrie a self-serving statement to minimize his participation in the crimes. There was no error by the trial court in this regard.

III. Use Immunity

Williams next argues that his due process and equal protection rights were violated by the trial court’s refusal to grant immunity to Antonio Britt, who presumably would have testified in his favor. This court has said that the granting of immunity is not a constitutional right but merely one authorized by statute. Fears v. State, 262 Ark. 355, 556 S.W.2d 659 (1977). It is within the prosecutor’s discretion to grant immunity when it is in the public’s interest. Id. The reason for granting immunity is to aid in the prosecution of criminals by inducing witnesses to testify. Id.

Williams fails to cite any criminal case law or statute in support of his argument that his constitutional rights were infringed, and this failure to adduce apposite authority or otherwise to make a convincing argument is sufficient reason to affirm the trial court’s ruling on this point. Hall v. State, 326 Ark. 318, 933 S.W.2d 363 (1996); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). It is also unclear from the abstract whether Williams obtained a definitive ruling from the trial court on this matter. We view Williams’s contention on use immunity to be without merit.

IV. Biased Juror

Williams complains that the trial court committed error by refusing to grant a mistrial due to the participation of Ulysses Stewart on the jury. Juror Stewart had hugged Williams’s mother in the hallway of the courthouse after the jury was selected. Williams’s argument to the trial court was that Stewart knew that his integrity was now subject to question and that he would likely lean in favor of the State’s case. Williams requested a mistrial on that basis, and it was denied. On appeal, he makes the same argument that the episode placed juror Stewart under unnecessary scrutiny.

A mistrial is a drastic remedy that should be granted only where the error is so prejudicial that justice cannot be served by continuing the trial or where the fundamental fairness of the trial itself has been manifestly affected. Peeler v. State, supra. The trial court is afforded broad discretion in making its ruling, and a mistrial will not be declared when the prejudice can be removed by an admonition to the jury. Id. This court has held that a trial court did not abuse its discretion when questioning a juror and the juror responded that he could maintain his objectivity. Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995).

As in Clayton, juror Stewart said that his relationship with Williams’s mother “wouldn’t have anything to do with how this case goes, or how come I serve.” Moreover, counsel for Williams conceded that the court was “eloquent” in how he handled the questioning of juror Stewart. There is also the point that Williams did not ask for curative relief by striking Stewart and empaneling one of the alternate jurors but instead insisted on a mistrial declaration. There was no abuse of discretion by the trial court in denying the request.

V. Proffered Instruction

For his final point, Williams argues that the trial court should have accepted his proffered instruction which would have added language to the AMCI instruction that mere presence is not enough to establish accomplice liability. Williams concedes that the proffered language is not included in AMCI 2d 401 but observes that it is contained in the notes to the model instruction and is a correct statement of the law. The State counters that the model instruction was given and that this was all that was needed to state the law accurately.

The State is correct. It is not error to refuse to give a nonuniform instruction when a uniform instruction accurately reflects the law. Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). This court has recently rejected the precise argument now raised by Williams. See Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996). There was no error in refusing to give the amended instruction.

Affirmed.

       Williams made the corroboration argument to the trial court in somewhat veiled terms, but the State does not object to this argument on appeal, and we conclude that defense counsel adequately preserved the point.