author: David Newbern, Justice. Jack Holt, Jr., Chief Justice, Tom Glaze, Justice,

text:
    Warren MOORE v. STATE of Arkansas
    CR 89-37
    773 S.W.2d 834
    Supreme Court of Arkansas
    Opinion delivered July 17, 1989

      David Solomon, for appellant.

      Steve Clark, Att’y Gen., by: 01 an W. Reeves, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Warren Moore, the appellant, was convicted of kidnapping and theft of property valued in excess of $2500. We reverse the convictions because the trial court allowed the police officers who had testified against Moore to sit inside the railing in the courtroom, in a place normally reserved for parties, directly in front of the jury during the closing arguments. Moore has questioned the sufficiency of the evidence with respect to both offenses of which he was convicted. We find the evidence of the kidnapping was sufficient as was the evidence that he stole Ms. Newsome’s car; however, we find the evidence insufficient as to the value of the automobile he was accused of having stolen. We will address the sufficiency of the evidence points first. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Moore has also questioned (1) whether the court erred in denying his motion to dismiss the kidnapping charge on the ground that the same “force” was used to steal the car and to effect the kidnapping, (2) whether the court erred in refusing to suppress his inculpatory statements, and (3) whether it was an abuse of discretion to make his sentences consecutive rather than concurrent. We find no error in these points, and in view of our decision to reverse we will address them only to the extent necessary to give guidance for retrial.

The evidence supporting the convictions was as follows: Iva Newsome parked her car in front of a Piggly Wiggly store in West Helena. She left the motor running, and left her eight-year-old daughter, Nessuna, and her 20-month-old daughter, Akelia, in the car while she went into the store. Moore got into the car and, while he was backing the car away from the parking place, Nessuna was able to jump out and run into the store to get her mother’s help. Nessuna testified that she tried unsuccessfully to rescue her little sister but Moore was “grabbing” at Akelia’s legs.

Later the same evening Moore appeared at a tavern where he told Mr. Gause, a customer at the tavern, he had walked all the way from Forrest City. Moore left the tavern on foot. Gause also left and noticed a car with its lights on and motor running. Gause suspected Moore might have had something to do with the car. He followed Moore in his truck and picked him up. He drove toward the West Helena police station where he intended to turn Moore in. Before they reached the station, Moore jumped out and ran. He was caught by the West Helena police shortly after Gause told them what had happened.

Akelia was found wandering in the middle of a road by Mr. and Mrs. Vincent who took her to their home after trying unsuccessfully to find her home near where they picked her up. They called the police, and Akelia was reunited with her mother that evening.

Commander Bob Chisnall of the West Helena police testified that, as he was escorting Moore to an interview room, Moore stated “he didn’t know why he took the kid,” and that he just needed a ride to Forrest City. Chisnall then told Moore not to say anything else until he had been told his rights. Although Moore refused to sign a written statement after having been read his rights, other officers, Detective Williams and Lieutenant Goings, testified that Moore admitted in their presence and in the presence of Chisnall that he had taken the car and let the child out by the side of the road.

Mrs. Newsome testified that her car was a 1980 Oldsmobile 98 for which she paid $3600 in 1985. She testified it was still worth what she paid for it. She had spent “$ 150.00 something” to have the transmission repaired after this incident which occurred on July 15,1988. No other evidence of the value of the vehicle was introduced.

After the instructions had been given to the jury and before the closing arguments, Moore’s counsel asked the court to have the three police officers who had testified seated among the other spectators rather than at the place normally reserved for parties which was directly in front of the jury. The motion was denied.

The jury returned verdicts of guilty and recommended sentences of 30 years for kidnapping and 20 years for theft. Moore’s counsel asked that the sentences be served concurrently. The court ruled that the sentences would be consecutive.

1. Sufficiency of the evidence

The evidence of Moore’s guilt of kidnapping was sufficient. He was identified by Nessuna as the person who got in the car with her and Akelia and drive it away with Akelia still in it. As we will note below, Moore’s statements to the police, which were tantamount to confessions, were admissible. When combined with the direct identification, and the corroborating testimony of Mr. Gause and the Vincents, the evidence of guilt of kidnapping becomes overwhelming.

Moore contends in a separate point that the kidnapping charge should have been dismissed on motion because no force was used other than sufficient force to steal the car. To agree, we would have to ignore the testimony of Nessuna to the effect that Moore was grabbing at Akelia’s legs as Nessuna tried to rescue her. Moore cites Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988), on this point to no avail. That case dealt with the amount of force necessary to commit both rape and kidnapping. The crime of theft requires no force, and we have no doubt the evidence was sufficient to show Moore used the force necessary to deprive Akelia of her liberty.

The evidence of guilt is equally overwhelming with respect to the theft by Moore of Iva Newsome’s automobile. Moore argues there was no showing that he intended to “deprive” Ms. Newsome of her car. The argument apparently is that he only intended to use it temporarily and that does not constitute deprivation. We cannot agree. The theft statute, Ark. Code Ann. § 5-36- 103(a)(1) (Supp. 1987) makes no exceptions for temporary deprivation. The evidence clearly supports the conclusion that Moore intended to deprive the owner of the car for at least the time he was in possession of it and perhaps longer, as he did not exactly return it to her himself.

We cannot, however, find sufficient evidence that the value of the car was in excess of $2500. According to Ark. Code Ann. § 5-36-103 (Supp. 1987), theft of property is a class B felony if the property stolen is worth in excess of $2500. For a class B felony, the sentencing range is not less than five years nor more than 20 years imprisonment. Ark. Code Ann. § 5-4-401 (a)(3) (1987). Moore was sentenced to the maximum 20 years.

In Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980), the appellant contended it had not been shown that a television set he was found to have stolen was valued in excess of $100. We wrote:

Wendel Fleming, its owner, testified that it was a 19-inch Sears color set he had purchased a year and a half prior to its theft, that the purchase price was $476, that he had never had any operational problems with it and that it was in good condition when stolen. The purchase price paid by the owner is admissible as a factor for the jury to consider in determining market value, when it is not too remote in time and bears a reasonable relation to present value. Williams v. State, 252 Ark. 1289, 482 S.W.2d 810 [1972]. This was the only evidence of value. Appellant contends that, because the set had been used for a year and a half, evidence of the purchase price was not substantial evidence of a market value of $100, relying upon Cannon v. State, 265 Ark. 270, 578 S.W.2d 20 [1979]. In that case a 1955 model automobile had been stolen. It had been purchased 12 years before the theft for $148. Naturally we held this did not show value of $100 at the time of the theft. The situation is entirely different. Unlike the situation in Cannon, where the automobile was 23 years old and the purchase so remote in time, here the evidence of value was not so remote and was substantial.

In the Cannon case we pointed out that the state’s duty to establish the value of the car was just as important as its duty to establish the identity of the thief and the ownership of the property. We do not question the propriety of admitting Ms. Newsome’s testimony as to her opinion of the car’s value, despite the remoteness in time of her purchase, absent objection to that testimony. Boone v. State, 264 Ark. 169, 568 S.W.2d 229 (1978). The question here is whether it constituted substantial evidence that the car was worth more than $2500.

The question is a close one; much closer than the question whether a television set purchased a year and a half ago for $475 would be worth more than $100. The discussion quoted from the opinion in the Tillman case shows that there is a point at which this court will hold the testimony of the owner of property as to its value does not constitute substantial evidence of its value at the time of the theft. In the Cannon case the state argued the jury’s determination that the car was worth more than $100 should have been sustained because the jurors obviously applied their common knowledge. We held that jurors may not be left to their common knowledge of such matters. It is clear, however, that some element of judicial notice was applied in the Tillman case where we wrote that the case of a car purchased 12 years earlier was “naturally” different from that of a television purchased one year and a half earlier. We cannot take judicial notice here that “naturally” the evidence here showed a value in excess of $2500 of an eight year old car.

2. Policemen seated before the jury

In response to Moore’s argument that it was improper and prejudicial to permit the West Helena policemen who had testified against him to sit within the rail in a place normally reserved for parties during the closing arguments, the state argues the court found the policemen would give the court needed security because there was a rumor about an escape attempt. No such finding has been abstracted by either party. Even if we could consider it, it would have been a very thin reason, given Moore’s contention that the policemen were not even in the courtroom during the testimony of other witnesses.

Although we cannot say for certain this obvious ploy of seating the police witnesses in the manner described amounted to a deliberate attempt to intimidate the jury, we can and do hold it was improper. The resulting prejudice seems clear in that the jury gave the maximum sentences for kidnapping and theft to a first offender.

While it is within the prerogative of the judge to determine the seating arrangements in the courtroom, Webster v. State, 284 Ark. 206, 680 S.W.2d 906 (1984), the judge may not take precautions in the name of security which result in prejudice to the defendant. Sirratt v. State, 240 Ark. 47, 398 S.W.2d 63 (1966). This case presents the appearance of manipulation of the seating arrangement so as to keep the presence and testimony of certain witnesses, but not others, before the jury. We take every precaution in this jurisdiction to keep the court from commenting on the evidence. Ark. Const. art. 7, § 23; Tandy Corp v. Bone, 283 Ark. 399, 687 S.W.2d 312 (1984); Breeden v. State, 270 Ark. 90, 603 S.W.2d 459 (1980). In Watkins v. State, 222 Ark. 444, 261 S.W.2d 274 (1953), we noted that where a judge, by language or conduct expresses an opinion as to the credibility of a witness there is a palpable violation of our constitution. There we cited and quoted from several cases stating that “remarks or conduct” (emphasis added) expressing or intimating the opinion of the judge as to the credibility of a witness constitutes error.

We have found no case where we have held the actions of the court, as opposed to its words, amounted to a comment on the evidence. Here, however, we cannot ignore the truism that actions speak louder than words. The motion to have the policemen moved behind the rail where they could sit with other spectators should have been granted, and we hold it was prejudicial error to have overruled it.

3. Suppression of statements

Moore’s statements were made while he was in police custody. He contends they were not made voluntarily. We have, therefore, independently examined the totality of the circumstances and concluded they were voluntary. There is no allegation of police coercion. The only clear argument Moore makes on this point is that it is “unlikely” he would have made statements amounting to confessions of the crimes charged under the prevailing circumstances. We find that argument unconvincing. Absent any allegation or proof of coercion, we find the statements were voluntarily made. Colorado v. Connelly, 459 U.S. 157 (1986); Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987).

4. Consecutive sentences

While the trial judge gave no reason for making the sentences consecutive other than “the evidence,” we cannot say he abused his discretion. Moore argues lack of evidence of prior convictions and the lack of a presentencing report. No authority is cited showing that sentencing should be controlled by either of these facts. Sentences are served concurrently unless the court specifies they are to be consecutive. Ark. Code Ann. § 5-4-403 (a) (1987). While there are some statutory limits on the court’s discretion, § 5-4-403 (b) and (c), they do not apply in this case.

Conclusion

The kidnapping conviction and the theft conviction are reversed because of the error in allowing the policemen to remain inside the rail during closing arguments. Moore may be retried on both charges; however, he may not be retried for theft charged as a class B felony, given the failure in the first trial of evidence showing the value of the automobile to have been in excess of $2500.

Reversed and remanded.

Holt, C.J., concurs.

Hickman, Hays and Glaze, JJ., dissent.

Jack Holt, Jr., Chief Justice,

concurring. I share the majority’s concern over the trial court permitting three West Helena police officers, who had previously testified at trial, to sit within the railing directly facing the jury. These former witnesses were not officers of the court but were city officers attending trial outside their jurisdiction. (Phillips County Circuit Court is located in Helena, not West Helena.) The officers were not deputized, nor were they stationed in the courtroom as bailiffs. Their placement in the face of the jury was for the purpose of intimidation rather than “security,” as claimed by the state.

Even though the evidence of guilt as to the kidnapping was overwhelming and, perhaps, as to the theft of property sufficient, we must concern ourselves with the question of what effect did the officers’ intimidation have on the jury in regard to sentencing of the appellant. The answer can be found in the jury’s assessment of sentence. As noted by the majority, the jury gave the maximum sentence for kidnapping and theft of property even though the defendant was a first offender.

The majority states, “The resulting prejudice seems clear . ...” I agree. See White v. State of Arkansas, 298 Ark. 163, 765 S.W.2d 949 (1989) (Holt, C.J., dissenting).

Tom Glaze, Justice,

dissenting. I dissent as to that portion of the opinion reversing the kidnapping and theft convictions.

First, the majority accepts without question the assertion of appellant that he was prejudiced because the police officers who testified against him were allowed to sit inside the railing in the courtroom directly in front of the jury during the closing arguments. The trial judge allowed this seating arrangement because there were rumors of an escape attempt on the part of the appellant. Clearly, the trial judge has wide discretion in determining the manner in which a trial is to be conducted, and we should not substitute our judgment for his unless there has been an abuse of discretion. Nevertheless, the majority characterizes the trial judge’s decision to permit the particular seating arrangement on the basis of a possible escape attempt as “a very thin reason,” and states that the “resulting prejudice” seems clear in that the jury gave the maximum sentences for kidnapping and theft to a first offender. Acting on what can be called a whim, the majority gives no reason for belittling the trial court’s expressed concern regarding a possible escape. Chief Justice Holt, on the other hand, implies in his concurring opinion that he simply disbelieves the trial judge by saying the officers’ presence was for the purpose of intimidation, not for security. Again, the majority and concurring opinions give no reasons for rejecting the trial judge’s finding in this matter. This case presents a clear instance where appellate justices have determined facts and credibility.

Aside from such concerns, I submit that the jurors gave maximum sentences on those charges because the evidence of appellant’s guilt was overwhelming. Appellant admitted in the presence of several officers that he stole the car with a 20 month old baby in it. For whatever reason, he later decided to remove the baby, abandoning it on the side of the road. The baby’s older sister identified the appellant as the person who stole the car, and she further stated that the appellant prevented her from rescuing her baby sister by grabbing the baby’s legs so as to keep the child inside the car. The majority concedes that the evidence of guilt was overwhelming, and yet nevertheless feels compelled to demonstrate prejudice on behalf of the appellant, even though appellant has only argued, but not shown such. Aside from the fact that it is the appellant’s burden, not this court’s, to demonstrate prejudicial error, Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), the majority proceeds to ignore our cases in which this court has held that it will not consider arguments where the evidence of guilt is so overwhelming. Id.; Gage v. State, 295 Ark. 337, 748 S.W.2d 351 (1988). Even an error of constitutional proportion will not require reversal if it is harmless beyond a reasonable doubt. Gage, 295 Ark. 337, 748 S.W.2d 351; Snell, 290 Ark. 503, 721 S.W.2d 628. I would affirm on this point as appellant has not demonstrated prejudice in light of the overwhelming evidence against him.

Regarding the theft charge, the majority asserts that the evidence did not “naturally” show a value in excess of $2,500 of an eight year old car. The majority totally ignores the car owner’s testimony. In this respect, the owner of the car, Iva Newsome, testified without objection that she bought the car in 1985, that the car is in reasonably good condition, and that the value of the car is what she paid for it, $3,600. Appellant offered no evidence to discredit Newsome’s value testimony, but this court on appeal gives that testimony no mention. To reverse this case in light of Newsome’s testimony, the majority would have to conclude that testimony to be worthless. Clearly, that was within the province of the jury, not this court. It need only be pointed our that the testimony of the victim as to his or her opinion of the value of the property taken, without objection, is admissible and constitutes substantial evidence of the value of the property. Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980); Watson v. State, 271 Ark. 661, 609 S.W.2d 673 (Ark. App. 1980). I would affirm on all points.

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


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    CITY OF LITTLE ROCK v. CHARTWELL VALLEY LIMITED PARTNERSHIP, by its General Partner Rodney D. Myers Corp., Thorp Thomas, and Al Stanford
    89-7
    772 S.W.2d 616
    Supreme Court of Arkansas
    Opinion delivered July 17, 1989

      Mark Stodola, Little Rock City Att’y, by: Thomas M. Carpenter, Asst. City Att’y, for appellant.

      Morgan E. Welch, for appellee.
   Tom Glaze, Justice.

Appellees (Chartwell) planned a residential development on 2,500 acres located in Saline County adjacent to the Pulaski County line. Chartwell petitioned the Little Rock Water Works Commission (Water Commission) and Little Rock Sanitary Committee (Sewer Committee) for their extraterritorial extension of water and sewer services, but was informed it would need approval from the Little Rock Board of Directors (Board). The Board, pursuant to policy, resolutions and ordinances, denied Chartwell’s requests, and Chartwell filed this suit, seeking a declaration that the Water Commission and Sewer Committee were autonomous and had the sole power to extend services and that the Board’s actions conflicted with state law. The trial court entered a summary judgment agreeing with Chartwell’s contentions. We reverse and hold, as a matter of law, that the City Board, not the Water Commission and Sewer Committee, has the jurisdiction and authority to extend utility services to developments outside the municipal boundaries.

The broad issue to be decided is whether the Board or its utility commission and committee has the power to extend municipal sewer and water services to areas outside city limits. Answering this issue requires a brief discussion of our state laws and case precedents that have developed-over the past nearly sixty years.

Under § 2of Act 132of 1933 [now Ark. Code Ann. § 14-235-206 (1987)], municipal counsels were empowered to establish a sewer committee to supervise a sewage disposal system, and the committee was to function under the control of the council as provided by ordinance or resolution. In 1933, the General Assembly also enacted Act 131 [now Ark. Code Ann. § 14-234-201 to -218 (1987)], which gave municipalities the authority to purchase and construct waterworks systems, and in 1937, it passed Act 215 [now Ark. Code Ann. § 14-234-301 to -309 (1987)], which provided that first or second class cities could create a commission for the purpose of operating and managing their waterworks system. Section 5 of Act 215 authorized such water commissions to manage, operate, improve, extend, and maintain municipal waterworks and distribution systems, and gave such commissions unlimited authority to perform these functions. At this point in legislative history, the sewer and water committees or commissions had authority to manage and supervise their respective systems, but substantial doubt existed concerning their authority to extend services beyond municipal boundaries.

In the 1940’s, this court held that the extension of water and sewer systems beyond a city’s limits was an ultra vires activity and thus prohibited. See, e.g., Yancey v. City of Searcy, 213 Ark. 673, 212 S.W.2d 546 (1948); Mathers v. Moss, 202 Ark. 554, 151 S.W.2d 660 (1941). After these decisions, the General Assembly, under Act 321 of 1955 [Ark. Code Ann. § 14-234-101 to-110 (1987)], provided that a municipality owning a waterworks system shall have the option of extending its services to any consumer outside its boundaries, but it shall not be obligated to do so. See particularly Act 321 of 1955, § 7 (§ 14-234-110(a) and (b)). Section 7, codified as 14-234-110(b)(3), specifically empowered the “legislative body” of the municipality to determine the rates charged nonresident consumers. Act 131 of 1933, the legislation noted earlier and which authorized municipalities to purchase or construct a waterworks system, defined “legislative body” to mean the mayor and council of any city or town. See Act 131 of 1933, § 2. In 1959, the General Assembly again addressed this issue of providing services to adjoining areas by enacting Act 288 [Ark. Code Ann. § 14-234-111 (1987)], and the pertinent provisions of that Act provide as follows:

SECTION 1. Any municipality in the State of Arkansas owning and operating a municipal waterworks system or a municipal sewer system or both may extend its service lines beyond its corporate limits for the purpose of giving water service, sewer service, or both, to adjacent areas where the demand for services is sufficient to produce revenues that will retire the cost of such service lines. (Emphasis added.)
* * *
SECTION 3. Any municipality extending a service to an adjacent or nearby area shall have the power to fix the schedule of rates for services so extended.
SECTION 4. Nothing in this Act shall be construed to require a municipality to extend either water or sewer service to adjacent or nearby areas.
* * *

From a review of the foregoing, we believe it is beyond question that the General Assembly fully intended to empower municipalities with the authority to extend water and sewer services beyond their boundaries, but no one, including its water commission or sewer committee, can obligate a municipality to extend those services. Although Chartwell argues that such commissions and committees are autonomous, the General Assembly specifically grants, without mentioning such commissions or committees, the authority to municipalities to extend water and sewer services outside city boundaries and it further has provided that the rates charged for these services must be established by the municipality. In the case of water commissions, that municipal body is particularly defined as being its legislative body. Also, in reading the legislative laws pertaining to sewer committees, Act 132 delimits the authority given sewer committees to functions municipal councils provide them under ordinance or resolution.

Here, the Board, by prior ordinances, permitted its water commission and sewer committee to extend services outside the corporate limits of the city, and apparently some extraterritorial extensions of services had been granted by the commission and the committee to approximately 5,000 customers. Of course, as we held in City of Ward v. Ward Water & Sewer System, 280 Ark. 177, 655 S.W.2d 454 (1983), whatever a municipal government may do by majority vote, it may undo by majority vote, absent constitutional or statutory restrictions. In the instant case, we find no statutory restrictions to the Board changing its prior ordinances. Nor did Chartwell argue and obtain a ruling as to any constitutional issues that the Board unlawfully restricted the power originally given to the sewer committee and water commission by requiring Board approval before any services could be extended beyond municipal boundaries.

Finally, Chartwell notes that the Board’s policy and resolution requires that Chartwell’s property must meet city zoning requirements and be annexed before water and sewer services can be extended. Under the circumstances in this case, Chartwell argues the annexation requirement conflicts with state law. Chartwell cites Ark. Code Ann. § 14-43-601(a)(1)(N) (1987), which delineates a municipality’s general power regarding the annexation of territory. It contends that, while a city generally has broad power in this respect, the Board here has precluded any possibility of Chartwell’s property being annexed since its property is contiguous to the adjoining county of Pulaski. Chartwell argues that an annexation in these circumstances is controlled by Ark. Code Ann. §§ 14-40-401 to -408 (1987). This being true, Chartwell submits that § 14-40-404 requires that all of the proposed annexed lands be in the school district of the annexing municipality and they must have been within that school district since June 30,1967 — a condition that Chartwell and its property cannot meet. First, we are uncertain if § 14-40-404 restricts the Board’s power to annex Chartwell’s property, but even if that law applied, we believe Chartwell’s concern has no merit since, as is clearly provided under Act 321 of 1955, a municipality is not required to extend its services beyond its boundaries. The record reveals nothing that indicates the Board desired, under any circumstances, to extend utility services to the Chartwell development and certainly, no nonresident has an absolute right to have those services extended.

In accordance with the foregoing views, we reverse the trial court’s decision.

Purtle, J., not participating.

       Chartwell originally filed suit against the Board, Water Commission and Sewer Committee, but it nonsuited the Commission and Committee before the court granted summary judgment.

       The appellees cite McGehee v. Williams, 191 Ark. 643, 87 S.W.2d 46 (1935), to argue that cities were allowed to supply water and sewer services outside their borders. However, McGehee is factually distinguishable in that the city owned a surplus water supply located outside the city’s limits, which this court specifically allowed In Mathers.

       Chartwell, in its complaint, did allege generally that the Board’s acts denied Chartwell equal protection, but we find nowhere else in the record where this constitutional issue was presented to the trial court for ruling.


author: Per Curiam.

text:
    David L. BEATTY, et al. v. Bill CLINTON, Governor, et al.
    89-195
    772 S.W.2d 619
    Supreme Court of Arkansas
    Opinion delivered July 17, 1989

      David L. Beatty and Wayne Wagner, pro se.

      Ralph P. Forbes, on behalf of himself and appellants the People, Citizens, Voters, and Tax Payers of Arkansas.

      Steve Clark, Att’y Gen., by: Jeffery A. Bell, Deputy Att’y Gen., and Paul L. Cherry, Asst. Att’y Gen., for appellees Clinton, Fisher, Pledger, and Moody.

      Joseph K. Mahoney II, Michael K. Wilson, and Art A. Givens, pro se.
   Per Curiam.

This appeal is dismissed because it is not shown to involve an appealable order, the record is insufficient, and it appears that the parties are asking us for an advisory opinion.

The appeal is dismissed without prejudice to proceed further in the trial court.

Newbern, J., not participating.


text:
    Alfred J. MILLER v. STATE of Arkansas
    RC 89-23
    775 S.W.2d 79
    Supreme Court of Arkansas
    Opinion delivered July 17, 1989

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

In 1978, Alfred James Miller pleaded guilty to aggravated robbery and was sentenced as an habitual offender to fifty years imprisonment with twenty years suspended. In 1983, he filed a petition to proceed pursuant to Criminal Procedure Rule 37 which was denied. In 1987, Miller retained attorney Gregory Ferguson to file a second petition under Criminal Procedure Rule 37 in which it was alleged that Miller was entitled to relief on the ground that his conviction was void because no judgment was entered and the commitment which was entered was defective. The second petition was also denied. Ferguson then filed a petition for writ of habeas corpus in Miller’s behalf, raising the same allegations raised in the second Rule 37 petition. After a hearing, the habeas petition was denied on July 7, 1988, and Ferguson filed an untimely notice of appeal and designation of record on August 8, 1988. The record was prepared but never lodged here. Miller has now filed a motion in this court in which he seeks a belated appeal.

Miller has attached to the motion a letter from the court reporter to him dated October 18, 1988, in which the reporter states she has completed the transcript and forwarded it to the circuit clerk so that the clerk may complete the clerk’s portion and notify counsel that it is ready to be picked up for lodging on appeal. The reporter also notes that she is refunding a portion of the fee paid to her because the record was not as long as expected, which indicates that the record was paid for in full. Ferguson states in his affidavit filed in response to Miller’s motion that Miller informed him that the record would be paid for but that he (Miller) could not pay anything more on the “appeal costs” or attorney’s fees. (He also states that Miller did not offer to pay the Supreme Court filing fee, but no such fee is required by this court when lodging an appeal on a criminal matter.) Ferguson concedes that he was never relieved as counsel and states that the appeal has merit, but he argues that he should be relieved because the failure to pay the attorney’s fees and appeal costs has resulted in such animosity between him and his client that he should not be required to represent him.

The motion for belated appeal is granted because counsel was not entitled to abandon the appeal solely because he was not paid. Criminal Procedure Rule 36.26 provides that trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or this court to withdraw. The rule applies to appeals of orders denying post-conviction relief. Ferguson was not relieved by the trial court or this court. Therefore, he was obligated to perfect an appeal, unless his client waived his right to appeal. It is clear from the fact that Miller paid the cost of having the transcript prepared that he desired an appeal in this matter. Under these circumstances, Ferguson was required either to perfect the appeal or gain release from his obligations from the appropriate court. Mr. Ferguson is directed to promptly lodge the record in this case and continue his representation of his client on appeal. A copy of this opinion shall be forwarded to the Committee on Professional Conduct.

Motion for belated appeal granted.

Newbern, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Richard LOGAN v. STATE of Arkansas
    CR 87-6
    776 S.W.2d 327
    Supreme Court of Arkansas
    Opinion delivered September 11, 1989

      Joel O. Higgins, for appellant.

      Steve Clark, Att’y Gen., by: Kay J. Jackson Demailly, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Richard Logan, was convicted in three separate trials by jury of nine counts of rape and sentenced to life imprisonment plus 280 years. Following his convictions, Logan appealed and the trial court granted a blanket appeal bond; a month later, the State filed a verified petition to revoke Logan’s release. Subsequently, a hearing was held and the trial court revoked the appeal bond, finding that there was a substantial risk that Logan would commit a serious crime if admitted to bail pending appeal.

From that order, Logan appeals contending that the trial court erred in revoking his appeal bond on the basis that the decision was arbitrary and not based on any substantial evidence.

Logan’s convictions were the cumulative result of three separate trial court proceedings; upon appeal, six of the convictions were affirmed, one conviction modified to carnal abuse in the third degree, and one conviction was reversed and remanded. The remaining conviction has not been decided on appeal. As a result of the convictions affirmed by this Court, Logan is currently imprisoned in the Arkansas Department of Correction and the question concerning the revocation of his appeal bond is moot.

We do not ordinarily decide moot issues, General Publishing Co. v. Erxleben, 283 Ark. 136, 671 S.W.2d 182 (1984) (citing Mabry v. Kettering, 92 Ark. 81, 122 S.W. 115 (1909)), and will not here. “It is the duty of this [C]ourt to decide actual controversies by a judgment which can be carried into effect and not to give opinions upon abstract propositions or to declare principles of law which cannot affect the matter in issue in the case at bar.” Saunders v. Kleier, 296 Ark. 25, 751 S.W.2d 343 (1988) (citing Kays v. Boyd, 145 Ark. 303, 224 S.W. 617 (1920)). Accordingly, the trial court is affirmed.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Judy HOLBIRD v. STATE of Arkansas
    CR 89-53
    775 S.W.2d 893
    Supreme Court of Arkansas
    Opinion delivered September 11, 1989

      R. Paul Hughes III, for appellant.

      Steve Clark, Att’y Gen., by: Tim Humphries, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Judy Holbird was convicted of the aggravated robbery of the Mug n Jug in Fort Smith on March 14, 1988. The appellant was also convicted of being a felon in possession of a firearm. The manager and another employee identified the appellant as the robber. The manager described how the robbery occurred, how the appellant was dressed and the gun she used. His testimony was corroborated by the appellant’s confession. However, at trial she argued that she confessed because she thought her daughter had robbed the Mug n Jug and she wanted to protect her.

On appeal she argues the trial judge should have granted a mistrial for prosecutorial misconduct. “A mistrial is an exceptional remedy to be used only where any possible prejudice cannot be removed by an admonition to the jury.” McIntosh v. State, 296 Ark. 167, 753 S. W.2d 273 (1988). The question here is whether the trial judge abused his discretion. See Holbird v. State, 299 Ark. 245, 771 S.W.2d 775 (1989). We find no abuse of discretion.

During closing arguments, the prosecuting attorney stated “a real professional” committed this robbery and that the evidence showed that the appellant was the real professional. The judge admonished the jury to base their decision only on the evidence and not statements made by the attorneys. We find no abuse of discretion.

The prosecutor tried to answer the question of the robber’s identity — whether the mother or daughter committed the robbery — by asking the daughter, who was evidently in the audience, to stand. The prosecutor used very poor judgment, but we cannot say it should have resulted in a mistrial. The daughter had not been called as a witness. The record does not show the daughter actually stood, so we cannot say the judge’s denial of a mistrial was in error. Prejudice is not presumed and the appellant has demonstrated none. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984).

Affirmed.


author: David Newbern, Justice.

text:
    John Allen BURNETT v. STATE of Arkansas
    CR 89-24
    776 S.W.2d 327
    Supreme Court of Arkansas
    Opinion delivered September 11, 1989

      Q. Byrum Hurst, Jr., for appellant.

      Steve Clark, Att’y Gen., by: J. Denhammcclendon, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

John Allen Burnett, the appellant, was convicted of first degree murder and sentenced to life imprisonment for killing his wife, Cherie Burnett. He raised seven points of appeal, two of which we have combined for discussion. We find no merit in any of the points raised, and thus the conviction is affirmed.

The Burnetts shared a small apartment with Rod Pennington and Johnnie Loyd. On the evening of August 12, 1988, John Burnett left the apartment to be with friends. Cherie Burnett later left with a man named Stone. There was testimony that she was drinking whisky that evening. Stone testified that he and Cherie looked for the home of a person who was supposedly having a party but did not find it. He said he kissed Cherie and partially disrobed her, but she passed out and they did not engage in sexual intercourse. He took her back to her apartment and carried her inside.

In a statement to the police, Rod Pennington stated that when Stone brought Cherie back to the apartment she had numerous bruises. At the trial he testified that was not true but she did have “hickeys” on her neck. Johnnie Loyd testified that her original statement to the police was true but that it had left out the fact that John and Cherie had had a fight later that morning after John had returned with a friend, Danny Graham.

Pennington and Loyd testified it was not uncommon for John and Cherie to fight. They were awakened by the fight that night, or early morning, but both testified they did not see John hit Cherie with his fist. Rather, they said, he was “slapping” her. Johnnie admitted that John kicked Cherie and said he would kill her and that, although he was mad, she did not think he meant it. Johnnie also testified that John also threatened to kill her and Rod that night, and both testified to being afraid of John.

Graham was present during the beating. He described the fight too, saying that, after he and John returned to the apartment at 3:30 or 4:00 a.m., John awakened Cherie. John and Cherie were standing up hitting each other, and the fight moved through the three rooms of the apartment as well as outside. John was moving Cherie about, holding her by her arm and by her hair. It was a fistfight part of the time. When they were in the bedroom, John was on top of her hitting her, and she was “balled up” on the bed. At one point, “John flipped a chair over on Cherie and was mashing her with it.” During some of the protracted fighting Graham said he was lying on the couch trying not to watch, but he could hear Burnett hollering, “I’ll kill you, bitch.”

The following afternoon it appeared that Cherie was not breathing well, and John and others took her to a hospital where she was found to be in a coma from which she did not recover. Both the treating physician and the pathologist who conducted the autopsy testified that there were numerous cuts and bruises over Cherie’s entire body.

The autopsy showed an extensive hemorrhage around Cherie’s voice box which compressed the wind pipe and the voice box. That caused the brain to suffer from lack of oxygen. The brain was also compressed by an accumulation of fluids. In the opinion of the pathologist she died from all of the effects described, the beating, attempted strangulation, and edema of the brain.

John testified that when he and Graham returned to the apartment they found Cherie passed out on a mattress on the floor, partially disrobed, and with numerous bruises on her body. He said he shook her to try to awaken her to find out who had injured her and that she called him the names of other men and accused several persons of raping her. He said he became very emotional and slapped her to awaken her, but he denied having fought Cherie. He went with her to the hospital and attempted to resuscitate her on the way.

Other facts will be presented as necessary for discussion of the points of appeal.

1. Premeditation and deliberation

Burnett contends there is insufficient evidence to establish premeditation and deliberation which are elements of the offense of first degree murder. Ark. Code Ann. § 5-10-102(a) (2) (Supp. 1987). He argues that nothing in the evidence presented showed that he wanted her to die. To the contrary, there is evidence that he said he would kill her during the time he was administering a brutal beating.

The state asks us to find there was circumstantial evidence of premeditation and deliberation based on “the type of weapon used, the manner of its use, and location of the wounds,” citing Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986), and Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). We need not go that far in view of the direct evidence of Burnett’s intent which consists of the statements he made during the fight coupled with the serious injuries the jury believed he inflicted.

2. Previous conviction; enhancement

John Burnett testified on direct examination that he had previously been convicted of armed robbery. He did so presumably because he knew the prosecution could bring it up as a way of questioning his credibility. Coleman v. State, 256 Ark. 665, 509 S.W.2d 824 (1974). There is no merit in the argument that the prosecutor mentioned the conviction during the phase of the trial conducted to determine guilt or innocence, as he did not do so until after Burnett had testified about it.

Burnett also argues he was not allowed to enter a plea to the charge of enhancement. In Atkins v. State, 287 Ark. 445, 701 S.W.2d 109 (1985), we held that no such plea is required.

3. Change of venue

Burnett contends that the publicity about the killing was so pervasive that his motion for change of venue should have been granted. He presented two witnesses who testified about widespread gossip about the case and that they had heard people say he was guilty. Except for one of them naming her sister, neither witness could, or would, identify the persons who had made the statements. Other witnesses seemed to acknowledge that there was widespread discussion of the case but felt Burnett could receive a fair trial. He also introduced into evidence several newspaper articles about the incident.

Burnett’s burden was that of showing an abuse of discretion in the failure of the trial court to grant his motion. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986); Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979). Although we were not furnished an appellant’s abstract of the voir dire, we have examined the record and the abbreviated abstract presented by the state, and we have determined that the record shows Burnett got a fair jury. Some of the jurors had read or heard about the case, but none of those selected said he or she could not give him a fair trial under the law. See Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). We have held that it is not necessary that jurors all have no knowledge whatever of the case to be decided. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979). We find no abuse of discretion.

4. Photographs

a. Of the victim

Burnett contends the photographs of Cherie depicting her numerous injuries should not have been admitted because there was no evidence that the injuries depicted contributed to her death and thus the photographs only confused the jury. The state pathologist testified that Cherie died from the effects of all these various injuries. Clearly they were relevant, and there is no argument that they were duplicative. See Berry v. State, supra.

b. Of the crime scene

The argument here is that the photographs made in the apartment, which showed blood stains, a door facing partially torn off, and an indentation in the wall, were made on September 1,1988, and no evidence showing that the scene had been secured between August 13 and September 1 was presented. The officer who took the pictures had not been at the apartment on August 13 and thus could not testify whether the items photographed in the apartment appeared then as it did in the photographs.

Burnett’s counsel objected, and the court acknowledged the objection and ruled that the officer who took the pictures could identify them but that they would only be introduced into evidence subsequent to other testimony overcoming the objection, presumably by proving the photographs accurately depicted the scene on August 13, 1988.

Another police officer who had been at the scene on August 13,1988, testified that there were blood and glass on the floor on August 13. He could not, however, say for certain that the pictures, with a few exceptions, accurately depicted the condition, as of August 13, of the items shown in the apartment. One exception was a picture of a hole made in the sheetrock covering the wall. Another exception was a picture of a chair which the officer testified had been in the apartment that night. These photographs were properly admitted because there was testimony showing they depicted items or places in the apartment the same as they were the night the incident occurred. Riggan v. Langley, 238 Ark. 849, 383 S.W.2d 661 (1964); Wheeler v. Delco, 237 Ark. 55, 371 S.W.2d 130 (1963).

The only other photograph admitted was one showing the general layout of the apartment. It was admitted on the testimony of the officer who took it. Given the unlikeliness that the general layout would have changed in the two week period between August 13 and September 1, it was not error to admit the photograph.

We do not find that the prejudicial effect of these photographs outweighed their probative value. That decision lies within the sound discretion of the trial court. Berry v. State, supra; Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986). The trial court carefully weeded out the duplicative pictures, and we find no abuse of discretion in the ones admitted.

5. Prosecutor’s remark

Burnett testified during cross-examination that he was trying to help Cherie the day of the incident. The prosecutor then said: “Helped her right into the morgue.” No objection was made, but the court immediately admonished the jury to disregard the statement of the prosecutor. At that point defense counsel moved for a mistrial. The motion was denied.

We find no error. The statement, whether or not it was improper, was not of such magnitude that we must find the court abused its discretion in denying the motion. An admonition to the jury, such as the one given here, can cure whatever effect such a statement may have had. Foster v. State, 294 Ark. 146, 741 S.W.2d 251 (1987). In such a situation, a mistrial should be granted only if it appears that justice cannot be achieved by the continuation of the trial. Foster v. State, supra; Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985). We find no error.

6. Motion in limine

It is contended that the trial court should have granted Burnett’s motion in limine suppressing a statement made by Danny Graham to police officers. The ground stated is that defense counsel was not notified of the taking of the statement.

We need not decide the point. Burnett’s brief concedes that the court made no ruling on the motion. It was Burnett’s burden to obtain such a ruling. Wood v. State, 276 Ark. 346, 635 S.W.2d 224 (1982). No objection was made to the testimony of Graham, and the motion was not renewed or later pursued.

7. Rule 11(f)

In accordance with Arkansas Supreme Court and Court of Appeals Rule 11(f), the state has abstracted all objections and motions decided adversely to Burnett. We have reviewed them and the record, and we find no prejudicial error.

Affirmed.


text:
    H. D. GRIMES v. M.H.M., INCORPORATED, d/b/a Camelot Hotel and Kinark Corporation, d/b/a Camelot Hotel
    89-61
    776 S.W.2d 336
    Supreme Court of Arkansas
    Opinion delivered September 11, 1989

      George F. Hartje, Jr., for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Robert L. Henry III and Michael J. Emerson, for appellee.
   David Newbern, Justice.

The appellant, H. D. Grimes, is the owner of a coin and pawnshop in Conway, Arkansas. He checked in as a guest at the Camelot Hotel in Little Rock where a coin show was to be held and he was to display merchandise. He took his luggage, which consisted of some nine items loaded on a dolly he had brought with him, to his sleeping room. His luggage included a briefcase and a larger briefcase, like a salesman’s sample case, which, together, contained coins and jewelry he had brought for sale. The items in those two briefcases were, according to Mr. Grimes’s deposition testimony, worth approximately $110,000. He left his luggage in his room unattended for a few minutes while he returned to the lobby to learn when the display area for the show would be ready. When he returned to his room the briefcases containing the coins and jewelry were missing. He brought this action against appellees, M.H.M., Inc. and Kinark Corporation, which were doing business as the Camelot Hotel. The appellees will be referred to here as “the Camelot.” Grimes’s complaint alleged the Camelot was liable as an insurer of his loss and, alternatively, for negligence resulting in the loss.

A summary judgment, resulting from a motion made by the Camelot, was rendered in favor of Grimes for $300. The Camelot consented with respect to the amount of the damages on condition that the consent would be void if the judgment were reversed on appeal. The Camelot’s motion was for a partial summary judgment limiting its liability to $300. The Camelot’s memorandum brief on its motion stated it anticipated the granting of the motion would terminate the case, as it would consider offering judgment for $300 to Grimes pursuant to Ark. R. Civ. P. 68. Although the trial court referred to the summary judgment awarded as “partial”, the concluding words of the document entitled “judgment” were, “that plaintiff shall have judgment against and recover from defendants the sum of THREE HUNDRED DOLLARS ($300) as hereinabove set forth.” The trial court thus apparently treated the motion as one for a final summary judgment. We, therefore, will treat the award as an appealable judgment rather than as a partial judgment merely limiting the Camelot’s liability in the event liability is established.

The $300 judgment was based on the limitation of an innkeeper’s liability as provided in Ark. Code Ann. § 20-26-302 (1987). We must reverse because there is an issue of fact remaining as to whether the statute applies.

In Hackney v. Southwest Hotels, Inc., 210 Ark. 234, 195 S.W.2d 55 (1946), we pointed out that at common law an innkeeper was an “insurer” of the safety of baggage or other things brought into the inn by a guest except in cases of acts of God or “the public enemy.” Act 217 of 1913 provided limitations on that liability.

Subsections (a), (b), and (c) of § 20-26-302, which have undergone only minor changes since their original enactment as parts of Act 217, provide, in relevant part:

(a) No hotel proprietor shall be liable for the loss of or injury to baggage or other articles of property of his guest, unless the baggage or other articles of property shall have been actually delivered by the guest to the hotel proprietor or to his servants for safekeeping, or unless the loss or injury occurred through the negligence of the hotel proprietor, or by his servants or employees in the hotel.
(b) No . . . hotelkeeper,. . . who constantly has in his . . . hotel a metal safe or suitable vault in good order and fit for the custody of money,. . . jewelry, articles of gold and silver, precious stones, personal ornaments,. . . and who keeps on the doors of the sleeping rooms used by the guests suitable locks or bolts, and on the transoms and windows of the rooms suitable fastenings, and who keeps a copy of this section printed in distinct type constantly and conspicuously posted in not less than ten (10) conspicuous places in the hotel . . . , shall be liable for the loss . . . suffered by any guest unless the guest has offered to deliver the baggage or other articles or property to the . . . hotelkeeper for custody in the metal safe or vault, and the . . . hotelkeeper has omitted or refused to take it and deposit it in the safe or vault for custody, and to give the guest a receipt therefor.
(c) The keeper of any. . . hotel shall not be obliged to receive from any one (1) guest for deposit in a safe or vault any property hereinbefore described exceeding a total value of three hundred dollars ($300) and shall not be liable for any excess of the property, whether received or not.

All the merchandise inside the stolen briefcases fell within one of the categories enumerated in § 20-26-302(b). It is undisputed that Grimes made no effort to check the cases and that there were lock box facilities available to him. His argument, however, is that the Camelot is not entitled to this limitation on liability because its security vaults or lock boxes were unsuitable for deposit of his goods, that the locks on the doors to the Camelot rooms were unsuitable because there were numerous keys which were unaccounted for which would open the rooms, and that the Camelot had not posted the required copies of the statutory section in “ten conspicuous places in the hotel.”

With respect to at least one of the conditions set out in subsection (b) of § 20-26-302 a question of fact remains. The Camelot presented no evidence showing it had posted the required copies of the statutory section in ten conspicuous places. The Camelot argues that Grimes had presented no evidence to show that the requirement was not met. Summary judgment may not be rendered, however, unless “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ark. R. Civ. P. 56(c). The only item before the trial court on the point was Grimes’s deposition in which he testified he had hired a private detective who photographed the notices on the backs of the sleeping room doors in the Camelot, which were not copies of the statute, and who reported that there were no postings elsewhere in the Camelot of the required notice.

The burden of showing there is no remaining genuine issue of fact is on the party moving for summary judgment, and we view all the proof submitted in a light most favorable to the party resisting the motion. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). The Camelot has made no showing whatever that it complied with at least one of the prerequisites stated for limiting its liability, and thus the burden it assumed in making its summary judgment motion has not been met.

The Camelot argues, however, that subsection (c) of the statute would limit its liability regardless of the conditions stated in (b) because it provides that the innkeeper is not obliged to receive more than $300 in value of the property “hereinbefore described” and is not liable for any “excess of the property, whether received or not.” That argument separates subsections (b) and (c) for consideration despite the fact that the only property “hereinbefore described” is that described in subsection (b). The two subsections must be interpreted together. It is apparent that the $300 limitation which appears in subsection (c) applies only where the innkeeper has complied with subsection (b).

Another part of Act 217 now appears virtually unchanged as Ark. Code Ann. § 20-26-303 (1987). That section provides:

The liability of the keeper of any inn or hotel, whether individual, partnership, or corporation, for loss of, or injury to, personal property placed by his guest under his care, other than that described in the preceding sections, shall be that of a depository for hire, except that in case the loss or injury is caused by fire, explosion, vehicle damage, or aircraft damage not intentionally produced by the innkeeper or his servants, or by acts of God, the innkeeper shall not be liable, unless the loss is intentionally or negligently caused by the innkeeper or his servants. In no case shall liability exceed the sum of three hundred dollars ($300) for each trunk and its contents, one hundred dollars ($100) for each valise and its contents, and twenty-five ($25.00) for each box, bundle, or package and its contents, so placed under his care, and all other miscellaneous effects including wearing apparel and personal belongings, one hundred dollars ($100), unless he shall have consented in writing with the guest to assume definite liability.

We have held this language applicable to items left by a hotel guest in a hotel room. Turner v. Weitzel, 136 Ark. 503, 207 S.W. 39 (1918). Although the judgment here was not based on this section, the trial court mentioned in the judgment that it was applicable “alternatively” and would limit the Camelot’s liability to $300 for each of the briefcases. We discuss it here only for the purpose of guidance upon remand.

Section 20-26-303 does not apply in this case. It specifically states that it is applicable to limit liability for “personal property placed by his guest under . . . [the innkeeper’s] care, other than that described in the preceding sections . . . .” One of the preceding sections of the act is 20-26-302, where coins and jewelry are described.

Reversed and remanded.


text:
    Lonnie MITCHELL v. STATE of Arkansas
    CR 89-43
    776 S.W.2d 332
    Supreme Court of Arkansas
    Opinion delivered September 11, 1989

      Gibbons & Walker, by: M. Susan Walker, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   David Newbern, Justice.

This appeal is from Lonnie Mitchell’s second conviction of kidnapping, rape, and battery. His first conviction was reversed. The relevant facts are reported in Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988). The sentence pronounced at the second trial was life imprisonment for kidnapping, life imprisonment for rape, and 40 years imprisonment for first degree battery. The sentences are to be served consecutively. At both trials, the victim positively identified Mitchell as the person who had kidnapped, raped, and beaten her. In the second trial Mitchell testified, and he did not deny having been with the victim early on the morning the events allegedly occurred. Speaking presumably of their initial meeting, he said he did not force himself on her but that he had a “bad temper” and became very angry at her after her car had gone in a ditch and he had banged his head. On cross-examination he admitted he had struck the victim with his fist, kicked her when she was down on the pavement, and forced her to engage in sexual intercourse with him.

Three points for reversal are stated. It is contended (1) that selection of a jury from voter registration lists excludes a significant segment of the population and does not result in a fair cross-section of the citizenry serving as jurors, (2) that a mistrial should have been declared because of an unelicited prejudicial remark made by the victim on the witness stand, and (3) that a new trial should have been granted because the victim was seen speaking to two jurors during a recess in the trial. We find no merit in any of these points. While use of the voter registration lists to select jurors does exclude one group of persons, i.e., those who are not registered to vote, it has not been demonstrated that their exclusion results in other than a fair cross-section of the community sitting as jurors. Nor has it been shown that the remark of the victim, with respect to which an objection was sustained by the court, resulted in prejudice. We are given no reason to find error in the court’s factual determination that the alleged conversation between the victim and the jurors did not occur,

1. Jury selection

Mitchell’s first conviction was reversed because black jurors were peremptorily challenged without compliance with the inquiry requirements of Batson v. Kentucky, 476 U.S. 79 (1986), and Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). In this appeal Mitchell’s only racial reference is made to show that despite the fact that black people live in Pope County none were on the panel from which the jury was selected.

The procedure for using voter registration lists for the selection of jurors is found in Ark. Code Ann. §16-32-103(1987). Those excluded from service are persons not registered to vote. For a juror selection process to violate the “fair cross-section” requirement of the Sixth Amendment, which has been made applicable to the states through the Fourteenth Amendment, it must result in exclusion of a “distinctive” group, such as women. Duren v. Missouri, 439 U.S. 357 (1979). While it is clear that juror selection may not be the result of discrimination against groups defined by race, color, creed, or sex, the Supreme Court has made it equally clear that this does not mean that each jury must have on it persons representative of each distinctive group in the population from which it is chosen. See Taylor v. Louisiana, 419 U.S. 522 (1975). See also Lewis v. Pearson, 262 Ark. 350, 556 S.W.2d 661 (1977). Thus, the fact that there were no black persons on the panel from which the jury in this case was selected does not mean the jury was selected in a way which would' not result in a fair cross-section.

2. The victim's remark

The prosecutor asked the victim if she had any doubt about who had committed the offense. She replied she had none. He then asked who did it, and she responded, “It’s Lonnie Mitchell; and he knows he did it.” An objection to the remark was sustained, and defense counsel then moved for a mistrial. The motion was denied.

To be the basis of a mistrial, the incident complained of must be so prejudicial that it appears that the trial cannot proceed to a just result. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989). We have difficulty finding any prejudice here, much less the sort required for a mistrial. While the victim’s outburst was not strictly responsive to the question she had been asked, we cannot agree with Mitchell’s argument that prejudice was “manifest” from the fact that the victim was only the second witness and had not yet been cross-examined.

3. Juror misconduct

The trial court held a hearing on Mitchell’s new trial motion in which it was alleged that the victim had spoken with two jurors during a trial recess while the jurors and the victim and her family were proceeding up a set of stairs to reenter the courtroom. After listening to the testimony of a number of witnesses, the court concluded the evidence presented by Mitchell was too weak to show that the incident occurred.

Mitchell relies on Langston v. Hileman, 284 Ark. 140, 680 S.W.2d 89 (1984), in which the trial court found there had been a violation of his instructions to the jury. It was alleged that the jury foreman spoke with a witness and the defendant during the trial. The court denied a motion for a new trial because the case had, in the opinion of the court, been correctly and fairly decided by the jury. We reversed because under those “special circumstances” the trial court had abused its discretion by not correcting the appearance of evil. We noted, however, that we would not depart from the established principle that we will uphold the trial judge’s decision not to grant a new trial absent an abuse of discretion.

We find no reason to overturn the factual determination made by the trial court. Nor do we find an abuse of discretion.

Although the state’s brief does not indicate compliance with Arkansas Supreme Court and Court of Appeals Rule 11(f), to save the time which would be required to have the case rebriefed by the attorney general, we have examined the record and found no meritorious objections decided adversely to Mitchell and no prejudicial error.

Affirmed.


text:
    Harless MAULDING v. STATE of Arkansas
    CR 87-54
    776 S.W.2d 339
    Supreme Court of Arkansas
    Opinion delivered September 11, 1989

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

In the motion before us petitioner Harless Dale Maulding asks this court to allow him to file a forty-page petition pursuant to Criminal Procedure Rule 37. This court adopted a ten-page limitation on such petitions on June 5, 1989. Petitioner argues that it is a denial of due process of law to limit him to a ten-page petition when no such limitation existed at the time he was convicted of rape, kidnapping and burglary in 1986. We conclude that this court may place reasonable limitations on the form of pleadings before it and deny the motion.

States are not obligated to provide for post-conviction relief after the defendant has failed to secure relief through direct review of his conviction. Pennsylvania v. Finley, 107 S. Ct. 1990 (1987); Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). Nevertheless, when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. Pennsylvania v. Finley, supra; see Evitts v. Lucey, 469 U.S. 387 (1985); Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988). Due process, however, does not require courts to provide an unlimited opportunity to present post-conviction claims. As we said in Green v. State, 277 Ark. 129, 639 S.W.2d 512 (1982), when addressing the issue of whether a pro se appellant had a constitutional right to file a handwritten brief:

All state and federal courts have adopted rules for the administration of justice. The rules of an appellate court are intended to expedite the court’s consideration of matters presented to it. The prompt and orderly disposition of cases depends in part on standards which control the content, length and form of the appeal brief.

Likewise, the prompt and orderly disposition of petitions for post-conviction relief requires standards to control the content, length and form of the petitions. Before the rule was adopted limiting petitions to ten pages, it was not uncommon to receive petitions of seventy-five pages or more which consisted of an endless number of allegations which were largely repetitious and meritless. Any person should be able to state legitimate grounds for relief in ten pages. Indeed, the rule places an entirely reasonable restriction on petitioners under Rule 37.

The petitioner’s contention that he should not have to abide by the rule because it was not in effect when he was convicted is without merit. The page limitation in question is a procedural rule and not an ex post facto application of substantive law since the rules which govern the form and length of petitions for post-conviction relief do not alter the substantive offense charged or the punishment attached to the crime. See Dobbert v. Florida, 432 U.S. 282 (1977); Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, cert. denied, 108 S. Ct. 2699 (1987).

Petitioner argues that it would take him nine months to condense the forty-page petition to comply with the rule, causing his petition to be untimely because he could not tender it to this court within three years of the date he was sentenced as provided in Rule 37.2(c). He contends circumstances which arise by virtue of his being a prisoner make it difficult for him to rewrite the petition before the three-year limitation expires. While this court is cognizant of difficulties which may be caused by our procedural rules, due process does not require a separate set of rules for persons in prison. See Abdullah v. State, 294 Ark. 547, 744 S.W.2d 727 (1988); Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986); Bryant v. Lockhart, 288 Ark. 302, 705 S.W.2d 9 (1986); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983).

Motion denied.