author: John A. Fogleman, Justice. J. Fred Jones, Justice,

text:
    Danny Jerome SIMS v. STATE of Arkansas
    CR 75-85
    530 S.W. 2d 182
    Opinion delivered December 8, 1975

      Bill E. Ross, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Sims was tried and found guilty of murder of Mrs. Hazel Elmore in the perpetration of an armed robbery and sentenced to life imprisonment. We find it necessary to reverse that sentence and judgment upon appellant’s first ground for reversal, viz:

CONSTITUTIONAL RIGHTS OF APPELLANT WERE VIOLATED IN THAT APPOINTED COUNSEL FOR APPELLANT WAS NOT NOTIFIED OF A PRETRIAL LINE-UP HELD ONE WEEK PRIOR TO THE TRIAL.

The record indicates that Charles Banks, as public defender, was appointed to represent Sims as early as March, 1974. His trial commenced on October 21, 1974. Clay Elmore, the husband of Mrs. Hazel Elmore, was also a victim of the robbery during which his wife was killed. The robbery took place on March 31, 1973, at Elmore’s service station just off the Highway 140 exit from Interstate Highway 55 near Osceola. He was found wounded and bleeding, lying along the roadside approximately 175 feet from his station, yelling for help. He was taken to the emergency room at Osceola Hospital and arrived there about midnight. Officer Garland Bobo of the Osceola Police Department was on duty there and saw Elmore come to the door of the emergency room crying in a loud, terrified voice that he had been shot. Bobo observed that Elmore had been wounded in his left shoulder and hand by gunfire. He said that Elmore appeared to be in shock. After emergency treatment Bobo rode in an ambulance in which Elmore was transported to a Memphis hospital. Bobo returned about 3:00 a.m. and made a check on certain things, as he had been requested to do by Elmore, who gave Bobo the keys to the station.

While at the hospital, Elmore first told Bobo two black males were the robbers and later said there were three. He was unable to give any other description that night. Bobo also testified that en route to the Memphis hospital Elmore gave him a description of three categories of Chevrolet automobile used by the robbers. According to Bobo, Elmore said the car in which the robbers left was a small new two-tone Chevrolet but gave three different colors. Bobo mentioned the colors blue and black in his testimony but said that he might have recorded them as green and black. Bobo said that at this time Elmore seemed to be in a daze, with consciousness coming and going.

Lt. Moore, Criminal Investigator for the Osceola Police Department, said that he was aware that three black males named Myron Franklin, Robert Earl Richmond and Otis Franklin had been arrested on the morning of Sunday, April 1 on Elmore’s description of the automobile. These three, who were apprehended as they approached Osceola from the Interstate Highway, were photographed and fingerprinted while they were in custody for about an hour and a half. Moore took a stack of photographs which included photographs of these three persons to the hospital in Memphis later in the week and showed all of them to Elmore, who picked out the photographs of these three. Moore said that Elmore was under medication and in no condition to give further information. He stated that it was evident that Elmore was not coherent or mentally alert at the time.

When Clay Elmore was called as a witness, Banks requested an in camera hearing, saying that he anticipated that Elmore would be asked to identify appellant. Banks sought the hearing in order to explore the facts pertaining to a lineup identification of Sims by Elmore at the jail in Osceola during the week preceding the trial, in the absence of Banks. The prosecuting attorney candidly admitted that the lineup was held and that Elmore had then positively identified Sims as one of the three persons who participated in the robbery and murder of Mrs. Elmore. The prosecuting attorney stated that he did not propose to make any mention of the lineup, because Elmore had said that he could identify Sims upon the basis of the opportunity to observe him during the commission of the crime, and not from viewing him in the lineup. He further explained that the lineup was for the state’s benefit in order to determine whether Elmore could positively and without doubt identify Sims as one of those guilty of the crime. The trial judge suppressed any and all facts, circumstances and statements pertaining to the lineup, but held that the state would be permitted to call Elmore for the purpose of identifying Sims, if he could, even though nothing could be said about a lineup. The court also expressly gave defense counsel permission to go into the matter during this testimony.

On direct examination, Elmore positively identified Sims, saying that he first saw appellant standing in the door of the service station with a rifle in his hand. He related the story of the brutal murder of his wife in the men’s restroom, saying that Sims stood at least three feet away in the door with his rifle, while another robber shot her twice with a pistol. A third shot wounded Elmore. Elmore said that the whole episode covered a period of about four minutes.

On cross-examination, Elmore admitted that his testimony was highly emotional, as might be expected. Elmore said he had gone to Blytheville to see Sims in the jail there, because he just wanted to look at him, but the sheriff would not permit him to do so. He admitted having been present when Sims was arraigned at the preceding term of court. When asked to describe Sims without looking at him, Elmore said that he did not measure the defendant to see how tall he was and didn’t know how much he weighed. He said that at the time of the robbery Sims’ hair “bushed out” more than it did in the courtroom. He could not describe the clothing worn at the time of the robbery by the man he said was Sims. He admitted having seen Sims a few days previously in court and when, on another occasion, a sheriff’s office had brought Sims to the lobby of the courthouse for a drink of water, as well as on the occasion of the lineup. Elmore said that all those in the lineup were dressed alike and wore white shirts. Although he said he only wore glasses when making out credit cards, he put them on when he viewed Sims in the lineup at the jail, because he had to look through two “bunches” of wire and wanted to be sure. He also stated that when he saw Sims, he did not look at the four other persons in the lineup. Elmore testified that he did not remember being shown any photographs the evening of April 7 at the hospital in Memphis, saying that he was “doped up” at the time. Elmore said that the whole robbery episode occurred “pretty fast” and that his back was toward the robbers when he and his wife were taken to the bathroom where she was killed and he was shot.

No testimony about the composition of the lineup or what occurred at that time except that of Elmore appears in the record. It is clear that Banks had been appointed as appellant’s attorney at that time but was neither present nor notified. At the conclusion of the state’s evidence, appellant moved for a directed verdict because there was no evidence to connect him with the crime other than Elmore’s identification.

The Attorney General candidly admits that appellant and his attorney should have been notified of the lineup and the attorney given an opportunity to be present in order to meet the constitutional requirements set out in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed 2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178. He also agrees that when a lineup is conducted without the presence of accused’s counsel, the State must establish by clear and convincing evidence that the subsequent courtroom identification by a witness who identified the accused in such a lineup was based upon independent observation rather than upon the constitutionally infirm lineup procedure. Montgomery v. State, 251 Ark. 645, 473 S.W. 2d 885; United States v. Wade, supra. On this point, the state relies entirely upon the argument that there was clear and convincing evidence that Elmore’s courtroom testimony was not tainted by the lineup.

This question has troubled us considerably. We recognize that the circuit judge had an advantage this court does not, because of his opportunity to observe the witness and his courtroom identification. If only a simple preponderance of the evidence was sufficient to establish that Elmore’s courtroom identification was not tainted, we might well hold with the state in this case. We might have to rely upon the trial judge’s findings because we could not say they were clearly against the preponderance of the evidence. But when we look to the Wade tests, we cannot say that the requirements of Wade recognized in Montgomery were met on the record before us, particularly in view of the fact that the only real issue in the case, i.e., identification of Sims, turned upon this testimony alone, as appellant’s attorney aptly pointed out in the trial court. It is also significant that here, as in Wade, the lineup was conducted to “crystallize the [witness’] identification of the defendant for future reference.” In Wade, some factors to be considered in determining whether the identification was tainted were enumerated as examples. Among them were:

1. Prior opportunity to observe the criminal act.
2. The existence of any discrepancies between any prelineup description and the defendant’s actual description.
3. Any pre-lineup identification of another person.
4. Lapse of time between the alleged act and the lineup identification.
5. Facts disclosed concerning the conduct of the lineup.

The opportunity of Elmore to observe the robber he said was Sims was probably sufficient, although it was subject to some limitations. Regardless of the reasons, there were discrepancies between pre-lineup descriptions and pre-lineup identifications of others and the description of Sims and his in-court identification. There was a lapse of more than 18 months between the crime and the trial, during which Elmore may well have been influenced by suggestion, arising from his having observed the accused in custody and at pretrial proceedings. No doubt these matters raised a question in the minds of those conducting the prosecution about Elmore’s ability to eliminate any reasonable doubt about the identity of this person who participated in the robbery. This question was serious enough to cause them to satisfy themselves about Elmore’s ability in this important respect in the absence of defense counsel, who would undoubtedly seize upon any hesitation on the part of Elmore and any additional discrepancies that might arise. However commendable their motivation to be sure that they were not asking a jury to convict the defendant of a serious crime upon uncertain testimony, the method pursued did not pass constitutional muster. The very basic purpose of Wade and Gilbert, i.e., to permit accused’s counsel to be prepared for searching cross-examination, was subverted.

In a dissent it is urged that we should consider the failure to advise appellant’s attorney of the lineup as harmless error. This suggestion overlooks the fact that the failure to advise the attorney is not the issue. The question is whether the in-court identification of appellant was tainted by an unconstitutionally conducted lineup and inadmissible for that reason. We cannot say that the error was harmless when there is absolutely no other evidence to connect appellant with the crime, and appellant was deprived of his attorney’s ability to cross-examine the identifying witness about the lineup from personal observation of the proceeding. As we understand the rule, before an error of constitutional proportions may be considered harmless, it must be harmless beyond a reasonable doubt, and we must be able to say that untainted evidence of the defendant’s guilt was overwhelming before we can even consider whether the error is harmless. Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284; Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909 (1975). Of course, when, as here, there is no other evidence, the harmless error rule cannot be applied.

We are not ignorant of the record of appellant’s testimony on motion to suppress an alleged confession for involuntariness, which was suppressed by the circuit judge. We are fully aware of the fact that, on cross-examination of Sims at this hearing in chambers, the following took place:

Q. Well, your accomplices, Freddy Orr and this Charles Coleman, were present with you at the time of this killing, weren’t they, and, or you were present with them there?
A. Yes.
Q. So when you confessed to participating in this robbery, and—
MR. BANKS: If the Court please, we are going to object to that line of questioning. I don’t see it is relevant to this particular hearing on the voluntariness.
COURT: What was your question?
MR. PEARSON: When he confessed to participating in this robbery and confessed to participating in this killing it was true?
A. I had done—
COURT: The objection will be overruled.
A. I had done listened to the statement Orr and Coleman had given to the Sheriff, and I know exactly what they had.
Q. When you had denied to the sheriff and the officers present several times, that you weren’t there and didn’t participate and didn’t know anything about it, you were lying, weren’t you?
MR. BANKS: If the Court please, your honor, I have to object to that point also. He is requiring this man to testify against himself, and we are here to determine whether or not this confession is voluntary on his part; not to go into what the confession is.
MR. PEARSON: It goes to his credibility, your honor.
COURT: This objection will be sustained.
Q. All right, you did at first deny several times having participated in or been present at the time of the killing, did not not?
A. Right.
Q. And later then did make a truthful statement to them as to your part in the robbery and killing, did not not?
A. Yes, on tape.
Q. Why did you, after first denying it, then change your mind and tell them the truth about what happened?
A. Because I was—
MR. BANKS: If the Court please, your honor, I am sorry to have to object, but the prosecuting attorney is couching his questions in terms to make this man testify against himself. He is not asking him something about the voluntariness of the confession. He is asking about whether or not he told the truth.
COURT: The objection will be overruled. You may proceed.

It is self-evident these answers could not possibly have been used by the state as evidence-in-chief. Even though the court’s rulings on the objections made by appellant’s attorney seem inconsistent, the questions were improper and the answers could not be considered for any purpose, even on the question of voluntariness. Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); Rhone v. State, 254 S. 2d 750 (Miss., 1971); Washington v. Commonwealth, 214 Va. 737, 204 S.E. 2d 266 (1974); State v. Burke, 27 Wis. 2d 244, 133 N.W. 2d 753 (1965); State v. Thomas, 208 La. 548, 23 S. 2d 212 (1945); Isbell v. State, 44 Ala. App. 69, 202 S. 2d 555 (1967); U.S. v. Inman, 352 F. 2d 954 (4th Cir.) (1965); People v. Lacy, 25 A.D. 2d 788, 270 N.Y.S. 2d 1014 (1966). Even if appellant had not objected to the questions asked him in camera, his answers would not have been admissible during the jury trial. Hawkins v. State, 193 Miss. 586, 10 S. 2d 678 (1942). An accused has the right to limit his testimony in a Denno hearing to the question of voluntariness of an alleged confession, and neither his testimony relating to this issue nor his failure to object to cross-examination on the merits of the case is a waiver of his constitutional right against self-incrimination. Hawkins v. State, supra; Washington v. Com monwealth, supra; People v. Walker, 374 Mich. 331, 132 N.W. 2d 87 (1965). See also, State v. Burke, supra; State v. Thomas, supra.

Any doubt about the inadmissibility of admissions wrung from the accused by this cross-examination is laid to rest by Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). In that case, the court said:

The rule adopted by the courts below does not merely impose upon a defendant a condition which may deter him from asserting a Fourth Amendment objection — it imposes a condition of a kind to which this Court has always been peculiarly sensitive. For a defendant who wishes to establish standing must do so at the risk that the words which he utters may later be used to incriminate him. Those courts which have allowed the admission of testimony given to establish standing have reasoned that there is no violation of the Fifth Amendment’s Self-Incrimination Clause because the testimony was voluntary. As an abstract matter, this may well be true. A defendant is “compelled” to testify in support of a motion to suppress only in the sense that if he refrains from testifying he will have to forgo a benefit, and testimony is not always involuntary as a matter of law simply because it is given to obtain a benefit. However, the assumption which underlies this reasoning is that the defendant has a choice: he may refuse to testify and give up the benefit. When this assumption is applied to a situation in which the “benefit” to be gained is that afforded by another provision of the Bill of Rights, an undeniable tension is created. Thus, in this case Garrett was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.

True it is that this langugage was used with reference to a motion to suppress the fruits of a search and seizure, but it has been applied to cases involving confessions. Lindsey v. Craven, 365 F. Supp. 948 (C.D. Cal., 1973). We cannot conceive of any reason that could be given for not applying the rule of Simmons to any and all motions to suppress evidence.

We do not mean to say that Elmore’s testimony must necessarily be excluded on a retrial if testimony other than that before us should be developed. Here, as in Gilbert, we are told little about what occurred at the lineup. For instance, the only testimony about the composition of the lineup was that of Elmore that all five persons wore white shirts. No one ever undertook to show any resemblance or differences in the appearances of the people whose photographs Elmore picked out and the perpetrators of the crime, or any reason for misidentification and misdescription other than that Elmore was under medication and perhaps in shock.

We have heretofore avoided requiring an independent hearing of the Denno type in every case where the admissibility of in-court identification testimony is questioned on the assertion that it is tainted by pretrial procedures. We have recently held that such a hearing should be conducted in a particular case. Wright v. State, 258 Ark. 651, 528 S.W. 2d 905 (1975). This is another such case. The time has come to address ourselves more directly to the basic question whether such hearings are required. Under our own law, there are many inquiries that might be addressed to the question of admissibility, that could not be permitted in eliciting direct evidence. See Trimble & Williams v. State, 227 Ark. 867, 302 S.W. 2d 83; Spivey & Payne v. State, 247 Ark. 752, 447 S.W. 2d 846. It is extremely difficult to determine the question of admissibility when the entire examination, particularly direct examination, is conducted in the presence of the jury. There is, to say the least, a strong suggestion in a statement of the United States Supreme Court in Gilbert v. California, supra, viz: “The admission of the in-court identification without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error.” We are fully aware of the fact that this specific question was not raised in the trial court, but it seems essential that we treat it for the guidance of the court on retrial. We now conclude that, in cases tried after this date, an in-chambers hearing should be conducted to determine admissibility of in-court identification testimony whenever an objection is made on the ground that it is tainted by unconstitutional pretrial identification lineup or “showup” procedures. It may well be that the trial court cannot make a final determination without a courtroom attempt at identification, but this should not be done in the presence of the jury. Furthermore, in such a hearing witnesses other than the person giving identification testimony may be heard on the question of admissibility, even though their testimony might not be admissible in the trial. In this case the state, on the record before us, has not met its burden of proof on the admissibility of the identification. On retrial, other available evidence on the subject should be heard.

There are other questions which are not likely to arise upon a new trial. We will discuss those that are likely to arise, i.e., the argument that the evidence of death was insufficient and that a mistrial should have been declared on account of statements of the prosecuting attorney in closing argument.

There was testimony as to cause of death by a mortician. Police Officer Riney found Mrs. Elmore lying on the service station restroom floor on which he saw bloodstains near the spot where her head was lying. He found no pulse, but did find two gunshot wounds, one of which was in her head and the other in her breast. She appeared to him to be dead. The mortician, who had examined many bodies with gunshot wounds during his 30 years of experience, and who had also had occasion to ascertain from powder burns the proximity of a weapon inflicting a wound in bodies, found a bullet hole about an inch below Mrs. Elmore’s left breast, which he classified as an entrance wound because of the presence of powder burns. He found an exit wound about one inch below her right shoulder blade. He found in her left ear a wound he called an entry wound because of powder burns, and a larger exit wound about one inch below and one inch to the right of her right ear. He testified that Mrs. Elmore was dead and that in his opinion her death was caused by these gunshot wounds. Mrs. Elmore’s body was at the hospital when he picked it up. A photograph of Mrs. Elmore’s body as it was found on the restroom floor was made and introduced. Elmore testified that he left his wife because he knew she was dead.

Appellant’s argument on this point apparently hinges upon the absence of evidence of the results of an autopsy or a medical doctor’s opinion of the cause of death. This is not required in every case. We have heretofore held that Ark. Stat. Ann. § 42-611 et seq. (Supp. 1973) did not affect the admissibility of evidence of death or the cause of death of a victim of a crime by a medical expert on or an autopsy report prepared by a medical expert other than the state medical examiner. Stewart v. State, 257 Ark. 754, 519 S.W. 2d 733. We have also held that the testimony of an attending physician or surgeon on the subject may be admitted without reference to an autopsy. Stewart v. State, supra. Furthermore, expert testimony is not always required. No statute or judicial decision has impaired the efficacy of Edmonds v. State, 34 Ark. 720, where we held that both the fact of death and cause of death might be shown by strong and unequivocal circumstantial evidence such as to leave no ground for reasonable doubt, and that, where there is some proof of the corpus delecti, its weight and sufficiency is properly left to the jury. See also, McDaniels v. State, 187 Ark. 1163, 63 S.W. 2d 335. It has been said that the most satisfactory evidence of the fact of death is the testimony of those who were present when it happened or who, having been personally acquainted with the deceased, have seen and recognized his body after life is extinct. Cavaness v. State, 43 Ark. 331. There is no requirement that there be medical testimony. Glover v. State, 211 Ark. 1002, 204 S.W. 2d 373.

In McDaniels we held the evidence sufficient to show cause of death when it was shown that a deceased was shot through the left eye, below the heart and in the leg and that an undertaker shortly thereafter took charge of the body. We also took into consideration there direct and positive testimony of the undertaker that the victim was shot in such a manner as to produce death. The evidence here was sufficient. See Mosby v. State, 253 Ark. 904, 489 S.W. 2d 799; Johnson v. State, 120 Ark. 193, 179 S.W. 361; Outler v. State, 154 Ark. 598, 243 S.W. 851.

Appellant objected to the prosecuting attorney’s reference to testimony as uncontradicted and undenied, as a comment on defendant’s failure to testify, and moved for a mistrial. Overruling the objection and refusing to declare a mistrial was not error. Moore v. State, 244 Ark. 1197, 429 S.W. 2d 122; Edens v. State, 235 Ark. 996, 363 S.W. 2d 923; Ferrell v. State, 177 Ark. 742, 9 S.W. 2d 15; Davis v. State, 96 Ark. 7, 130 S.W. 2d 547.

The judgment is reversed and the cause remanded for a new trial.

Jones, J., dissents.

Roy, J., not participating.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion that the conviction should be reversed in this case.

This was a typical filling station robbery case attended by the additional feature of murder to avoid future identification which is also becoming typical in robbery cases. In the case at bar three individuals drove into a filling station attended by Mr. Elmore and his wife and while one of them waited in their automobile the other two confronted Mr. and Mrs. Elmore with rifles and emptied the cash register without difficulty and without resistance. One of the robbers took Mr. Elmore’s .38 caliber revolver from near the cash register. They herded the Elmores into a restroom and while one of them barred the door with a rifle, the other one executed Mrs. Elmore by shooting her through the chest and through the head with the revolver. They then attempted to execute Mr. Elmore, the only remaining eyewitness, by shooting him with the revolver but his gunshot wounds were not fatal. The robbers then drove away with ample reason to believe there would be no living person who could identify them if they were ever apprehended; and, that their constitutional rights, if properly pleaded and presented by court appointed counsel, would fully protect and insulate them against possible conviction on circumstantial evidence.

Apparently two of the robbers, Orr and Coleman, were apprehended in Missouri and made tape recorded confessions in which they implicated the appellant Sims as the third member of the trio. Sims was taken into custody and after hearing the recorded statements of the other two, he apparently also made a recorded confession, but his confession was suppressed as involuntary by the trial court partially because the interrogation continued after Sims, in effect, said he had nothing to say. At the in-chambers “-Drarco” hearing on the motion to suppress, Sims admitted that he was with Orr and Coleman when the crimes were committed. As abstracted in appellant’s brief, Sims said: “Yes Freddie Orr and Charles Coleman were present with me at the time of this killing and I was present with them.” This statement was made outside the hearing of the jury and I only mention it here as preface for my opinion that Mr. Elmore did not identify the wrong man at the trial or in the line-up.

I do not suggest that the trial court erred in suppressing Sims’ confession. Neither does the majority or anyone else suggest that Mr. Elmore identified the wrong man. Sims was placed in a line-up and was readily identified by the surviving victim. The majority reverses this case, and thereby nullifies the in-court identification by the only eyewitness and surviving victim of the crime, simply because the appellant’s court-appointed attorney was not notified of the time and place of the line-up. There is no question in my mind that Mr. Elmore made his in-court identification of Sims from the ordeal he experienced when his wife was murdered and he was wounded under the inside lights of his filling station rather than from seeing Sims in a line-up.

Mr. Elmore said he was not seeking the life of the appellant Sims because Sims was not the one who killed his wife. He said that the first time he saw Sims he was standing by the office door in his filling station with a rifle in his hands. He said another person was also in the main part of the filling station and that he likewise had a rifle. He then testified in part as follows:

“Q. Where in the station was your wife shot and killed?
A. In the bathroom; the men’s bathroom.
Q. Were you present there?
A. Yes, sir.
Q. And was this defendant present there?
A. Yes, sir.
Q. Where?
A. Right at the door, sir.
Q. What was he carrying at that time?
A. He was carrying a rifle.
Q. Did he himself shoot you or your wife?
A. He did not shoot my wife.
Q. The other man did?
A. The other man did.
Q. What did he shoot her with?
A. Sir?
Q. Whát did he shoot her with?
A. A .38 calibre pistol.
Q. Do you know where the pistol came from?
A. It was my pistol. It came from the side of the cash register or out of the drawer there.
Q. Do you know how many shots were fired?
A. Five shots.
Q. In the restroom?
A. In the restroom, yes, sir.”

Mr. Elmore said it was between .11:00 and 12:00 o’clock at night when the men stopped at his filling station. He said he did not pay a great deal of attention to them until after he had serviced a car and it had left. He said he then went back into the filling station; that one of the men was at the telephone, and he then testified as follows:

“A. . . . [0]ne was sitting on the water fountain and he throwed a rifle on me and said ‘Turn out your lights just like you’re closing up.’
Q. And was that this defendant?
A. No, sir, it was another one.
Q. And did you do that?
A. Yes, sir.
Q. Did you turn off your lights just like you were closing up?
A. Yes, sir.
Q. Then what happened?
A. We opened the cash register and told them to take what they wanted and don’t hurt us.
Q. Did you open your cash register?
A. My wife did.
Q. And did you or your wife tell this defendant, take what you want, and don’t hurt you?
A. Yes, sir.
Q. Did they say anything before the shooting?
A. They said that we would identify them.
Q. Said what?
A. They said that we would identify them.
Q. Did this defendant make that statement to you?
A. No, sir, the other one made that statement to me.
Q. Then what happened?
A. They got the money and told us to go in the bathroom, and tried to put us in the same coat.
Q. Tried what now?
A. Tried to put us in the same coat together.
Q. Coat ?
A. Yes, sir.
Q. I don’t understand what you are talking about.
A. Just a coat like you wear, an old army jacket, 1 believe.
Q. They wanted to put both you and your wife in that?
A. Yes, sir.
Q. You mean put both your arms in the same coat?
A. Yes, sir.
Q. What happened then?
A. They shot my wife and I grabbed her and let her down to the floor.
Q. Who shot her?
A. The other guy that was with him. I don’t know his name.
Q. But he shot your wife and you grabbed her?
A. And I grabbed her and let her down.
Q. Then what happened?
A. The second shot fired, he was still shooting at her. The third shot hit me, and went in right there and came out there (indicating). I bent over.
Q. Were you shot more than once?
A. I was shot three times, yes, sir.
Q. When the shooting was going on, where was this defendant standing?
A. He was standing in the bathroom door to keep us in there.
Q. You think he was standing there to keep you from running out of the room?
A. Yes, sir.
Q. How close to you and your wife was he, holding his rifle to hold you in there?
A- I would say at least three feet.”

It is obvious from Mr. Elmore’s testimony on direct examination the he had ample opportunity to see his assailants.

The basis of Mr. Elmore’s identification of Sims was clearly brought out on his cross-examination. On cross-examination Mr. Elmore testified in part as follows:

“Q. Mr. Elmore, the testimony that you have just given indicates that you identified positively that Danny Sims took part in that night of events?
A. Yes, sir.
Q. And the testimony that you have given here before this jury is what we would consider highly emotional?
A. Yes, sir.
Q. This is something I would like to express my sincere sympathy for you in your tragic loss. What we are here for, as you will understand, is the most positive proof in order that we may achieve justice. Is that correct?
A. That is correct.
Q. And we want to be positive beyond any doubt that no mistake has been made. Is that correct?
A. That is correct.
Q. Are you telling me and telling this jury that you are positive you have not made a mistake?
A. I am telling you that that is the man, so God be my helper.
* * #
A. I don’t want this man’s life. He didn’t kill my wife. This man didn’t.
* * *
Q. ... Tell us again how you noticed this particular individual there at your station?
A. When a man has come in to rob you, you look at him good. When they say that you will identify them if they didn’t hurt you, you look at them better.
Q. I believe you testified on direct examination that when they first came in, they used the phone?
A. Yes, sir.
Q. So you didn’t know at that point that they were going to rob you?
A. No, sir.
Q. Then how can you tell the jury you started making such a good identification of them?
A. Because when they throwed rifles on me, I looked at them.
Q,. You looked at them instead of the rifles?
A. Yes, sir.
Q. I assume you were in fear of your life? Is that correct?
A. I said I looked at them real good.
Q.. And you stood in open court and you looked around the entire courtroom and picked out Danny Sims as one man in your station that night with a rifle?
A. Yes, sir.
* * *
Q. How was his hair? Long or short?
A. His hair was bushed out more than it is now.
Q. How was he dressed?
A. I don’t recall his dress because I was looking straight in the face.
Q. Did you look at the other two?
A. No, sir, one didn’t get out of the car. I didn’t see him.
Q Q. One didn’t get out of the car?
A. A. One didn’t get out of the car.
Q. What did the other one look like?
A. The other had a large neck, a little darker complected than Danny Sims; a little higher; a little heavier.
Q,. I believe you stated that on direct examination that they turned the lights out? Is that right?
A. They turned part of the lights out, yes, sir.
Q. What part did they turn out?
A. All my outside lights. We left the inside lights on; just like I was closing up.
Q. They didn’t turn the inside lights off?
A. No, sir.
Q. You are positive of that?
A. I am sure of it.
Q. Was the bathroom light on?
A. Yes, sir.”

Mr. Elmore was then questioned by the defense counsel as to the line-up procedure. He said that in the line-up there were five men all wearing white shirts, and that he recognized the appellant Sims as soon as he saw him and did not pay too much attention to the other individuals in the line-up. He was asked to describe the other individuals in the line-up and he said:

“A. After I saw Danny, I didn’t look at the rest of them. I turned and walked out.
Q. You didn’t look at them at all?
A. I knowed him at the time I saw him.”

Mr. Elmore positively and emphatically identified Sims at the trial as the robber who confronted him with the rifle and the one who barred the restroom door while his wife was being executed with his own revolver and with which he was also shot. The fact that Mr. Elmore exonerated Sims as the one who actually did the shooting adds credit to his identification. The line-up identification was not mentioned by the prosecution at the trial and although it was mentioned by defense counsel, there was nothing whatever to suggest that the prosecuting witness Mr. Elmore may have identified the wrong person at the line-up or at the trial, or that his in-court identification was based at all on his line-up observation.

Certainly the police officers should be censored for not advising Sims’ attorney of the time and place of the intended line-up, but there is nothing to indicate the line-up was improperly conducted or in any. way suggestive. To reverse this case and thereby nullify the in-court identification by the only living victim who looked his assailant in the face while the crime was being committed, simply because Sims’ attorney was not called to attend the line-up is, in my opinion, putting form above substance, under the evidence in this case. Certainly this court should be concerned with whether the prosecuting witness identified the wrong man, but to reverse this case because of the dereliction of the police officers in not advising the appellant’s attorney of the intended line-up is to reverse the conviction because of harmless error.

I am not unmindful of the United States Supreme Court decision in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967). In the trial of that case two bank employees, who had been robbed, when asked on direct examination if the robber was in the courtroom, simply pointed to Wade. The prior line-up identification without knowledge of Wade’s attorney was then elicited from both employees on cross-examination, and the Supreme Court disposed of that case as follows:

“We, therefore, think the appropriate procedure to be followed is to vacate the conviction to determine whether the in-court identification had an independent source, or whether in any event, the introduction of the evidence was harmless error.”

We have no record of what occurred at the retrial of Wade if he was again brought to trial. Perhaps the two bank employees testified on retrial that they would never forget the look on Wade’s face or the expression in his eyes when he said, “Hand over the money or I will kill you,” and that their in-court identification was based on such independent face-to-face encounter, rather than on seeing him again in the police line-up. If such was the testimony at retrial, in all probability Wade was again convicted. On the other hand it is possible the prosecuting witnesses may have testified at the retrial as they apparently did at the first trial. “We saw the defendant at a police line-up — he is now in the courtroom and that is the man.”

It is obvious to me that the decision in Wade was left open for just such logical procedure. The “independent source” referred to in Wade could only have meant “independent of the line-up identification.” Surely the Supreme Court did not remand the Wade case to be retried in a vacuum, neither did it remand Wade for further inquiry as to the procedure at the line-up identification. It remanded Wade for further inquiry as to the in-court identification and whether it was from some source independent of the line-up identification.

Also in Gilbert v. California, 388 U.S. 263, the Supreme Court held that the admission of in-court identifications without first determining that they were of independent origin and not tainted by an illegal line-up was constitutional error, but in that case the court also said:

“However, as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the in-court identifications had an independent source, or that their introduction in evidence was in any event harmless error.”

I am thoroughly convinced that in the case at bar there was ample evidence of pre-trial identification of Sims totally independent of the line-up identification, and that the evidence already exists in this case that was required by the Supreme Court upon remand in Wade and Gilbert.

The majority point out that Mr. Elmore had seen the appellant Sims at other times during Sims’ pre-trial incarceration and indicate that Elmore might have been influenced thereby to some extent in his in-court identification. Surely the majority would not void an in-court identification if the victim of a crime should by chance see the accused between the commission of the crime and the trial of the accused.

I am opposed to extending the requirements of Wade and Gilbert one bit beyond the requirements therein set out and as I perceive the plain language of those opinions to state. If Elmore’s testimony, supra, did not reveal an independent source for his in-court identification, I cannot conceive of what could possibly become an independent source under the facts in this case. If the evidence in the case at bar does not meet “constitutional muster” under Wade and Gilbert, I think the court where that phrase was coined should say so in language better defining what would constitute an independent source.

Of course the United States Supreme Court will have no opportunity to better define “independent source” so long as state appellate courts conclude that it means something other than face-to-face confrontation at the commission of the crime and remand the cases to the trial court for additional inquiry into the validity of line-up identifications, or reverse and dismiss because of improper or tainted in-court identifications.

Sims personally and affirmatively elected to not testify in the case at bar and it is obvious to me from the clear and convincing evidence, that Mr. Elmore’s in-court identification of Sims was based entirely on his observation of the accused during the commission of the crimes and was not tainted in the slightest degree by the line-up procedure. It is furthermore my conclusion, that the failure to advise appellant’s attorney when the line-up was to be conducted, was harmless error under the totality of the circumstances and evidence in this case.

I would affirm.

      It should be noted that Elmore did not appear and testify at this hearing. His purported ability to identify the robber was stated only by the prosecuting attorney’s recall of statements purportedly made by Elmore.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Raymond FITZGERALD Jr. et al v. INVESTORS PREFERRED LIFE INSURANCE COMPANY
    75-132
    530 S.W. 2d 195
    Opinion delivered December 8, 1975

      Pearce, Robinson, McCord & Rotenberry, for appellants.

      Davidson, Plastiras & Horne, by: Cyril Hollingsworth, for appellee.
   Conley Byrd, Justice.

This is a proceeding pursuant to Ark. Stat. Ann. § 66-4249 (Repl. 1966), by appellants Raymond Fitzgerald, Jr., et al, dissenting stockholders, to recover from the surviving corporation, appellee, Investors Preferred Life Insurance Company, the value of the preferred stock held by the appellants in Universal American Life Insurance Company before a merger of the two corporations. Based upon the report of a single appraiser, agreed upon by the parties, the trial court entered judgment for the stock at a value of $12.50 per share, together with the costs of the appraiser and a reasonable attorney’s fee. The judgment carried interest at a rate of 6% from the date of the judgment. Both appellants and appellee have appealed.

Appellants point out that their preferred stock was purchased for $20.00 per share and that it had a liquidation value of $21.00. They then contend that they are entitled to the liquidation value upon a merger. We find no merit to this contention. First, appellants recognize that a merger is not the same as a liquidation. Second, the record shows that “Universal” had not had sufficient earnings to pay dividends in the last three or more years of its corporate existence and under those circumstances the preferred shares obviously would not necessarily have had a present value equal to a liquidation value that could not be realized until sometime in the uncertain future. Appellants recognize that if there had been an established market for the preferred stock, it would be inequitable to permit them to obtain a higher value for their stock by dissenting to a merger.

The trial court refused to allow interest on the value of the stock between the date of the merger and the date of judgment. In this we think the trial court erred. Ark. Stat. Ann. § 66-4249 (Repl. 1966), provides that a dissenting stockholder ceases to be a stockholder on the date of the merger and that the surviving corporation must make a tender of the fair cash value of the dissenting stock within 30 days of the merger. Since the tender in this instance was less than the fair cash value and the merger, in effect, destroyed the stockholder’s rights, simple justice would require that the assessment of interest from the last day of the statutory tender date to the time of judgment should be awarded. We so hold, notwithstanding the contrary holdings from other jurisdictions with similar statutory provisions. We have consistently held that in cases of conversion the defendant is liable for interest from the date of conversion, Bradley Lumber Co. v. Hamilton, 117 Ark. 127, 173 S.W. 848 (1915). Ark. Stat. Ann. § 66-4249 (Repl. 1966), places on the surviving corporation both the duties of determining the fair cash value and the making of a tender. To deny interest in the circumstances before us would encourage the surviving corporation to shave its estimate of fair cash value since it would have the benefit of the earnings of the money due to the dissenting stockholders during the period before judgment.

On cross-appeal it is contended that the trial court erred in accepting the report of the appraiser because the appraiser took into consideration matters beyond the scope of the appraisal. We find no merit to this contention because the appellee did not raise its objection when it first had the opportunity. The court’s instructions to the appraiser told him that “you may consider anything you deem appropriate in connection with your appraisal of the fair cash value.” Appellee did not object to the actions of the court until the appraisal had been made. At that time it objected to the appraiser’s consideration of the unfairness of appellee’s treatment of the preferred stockholders. Assuming that the appraiser’s report gave a monetary value to the “unfairness of appellee’s treatment of preferred stockholders,” we hold that the objection should have been made to the instructions of the court which permitted this action on the part of the appraiser and that when appellee wáited until after the appraiser had acted in accordance with the court’s instructions, the objection came too late. We pointed out in Smith v. Cummins, 249 Ark. 61, 458 S.W. 2d 140 (1970), that one could not wait until the jury verdict was in, and then, if the verdict were favorable, accept it, but if unfavorable object to it.

In view of the authorization in Ark. Stat. Ann. § 66-4249 for the assessment of a reasonable attorney’s fee for the services of the attorney for the dissenting stockholders, we are directing the trial court upon remand to award an additional $1,000 for the services of the appellants’ attorney in this Court.

Reversed and remanded for entry of a judgment not inconsistent with this opinion.


author: Frank Holt, Justice.

text:
    Dennis O. DAVIDSON et ux v. Lionel SMITH
    75-142
    530 S.W. 2d 356
    Opinion delivered December 8, 1975
    [Rehearing denied January 12, 1976.]

      Hugh L. Brown, for appellants.

      Brazil <2? Roberts, for appellee.
   Frank Holt, Justice.

This appeal results from a decree awarding appellee a mechanic’s and materialmen’s lien against certain real property owned by appellants. Appellant Davidson entered into a verbal agreement with appellee Lionel Smith. Smith was to restore a building to its original condition as a residence. Smith began work on the building sometime around the middle of September, 1973. About a month and one-half later, appellant decided to convert the building into his medical clinic. He discussed this change with the appellee, who undertook the job on a cost plus 10% basis. By December 31, 1973, appellant had paid appellee $27,552.40, part of which was a pre-payment for materials. On March 23, 1974, appellee presented a bill to appellant for material and labor plus 10% for “repairs and Remodeling in Old Building” and “New Part Addition” totaling $57,552.40. When appellant refused to pay appellee the balance, appellee brought suit alleging a total of $21,490.40 was due and unpaid. Simultaneously with Smith’s suit, Nabholz Supply Company, Inc., a supplier for the job, brought a suit against appellants for $10,445.35 for labor and materials furnished and used in the remodeling project. The claim of Nabholz was also included in appellee Smith’s complaint. By separate answer appellant Davidson interposed various defenses to Smith’s action. The court found that appellants owed appellee Smith, after certain credits, the sum of $19,103.50 plus interest ($14,862.09 plus interest of which is lienable against the interest of appellants in the real property). The court further found that Nabholz had “sold materials to and performed labor for use in the erecting of improvements and making repairs to existing improvements upon [appellants’ land] **** and further performed other labor and furnished other goods and materials unto the said Lionel Smith,” the appellee, and awarded a judgment against Smith in the sum of $10,514.37 plus interest ($8,511.87 plus interest of which is lienable against the interest of appellants in the premises). The court also found that the materialmen’s lien in favor of Nabholz was included within the mechanic’s and materialman’s lien which was awarded Smith and that satisfaction by Nabholz of its lien shall to that extent constitute a satisfaction of the mechanic’s and materialman’s lien in favor of Smith. It appears that pending this appeal the judgment awarded Nabholz was voluntarily paid by Davidson, the lien dismissed, and the judgment satisfied of record. Therefore, Nabholz is no longer a party in this appeal. The court also found that Smith was not precluded from maintaining his action for the balance due under his agreement by the provisions of Ark. Stat. Ann. § 71-701, et seq. (Supp. 1973).

For reversal appellant first contends that the court erred when it denied the motion of appellant to dismiss the claims of Smith pursuant to the provisions of §71-701, et seq, and in particular § 71-713. § 71-713 provides:

Any contractor who for a fixed price, commission, fee or wage, attempts to or submits a bid or bids to construct or contract to construct, or undertakes to construct, or assumes charge in a supervisory capacity or otherwise, of the construction, erection, alteration or repair, of any building, highway, sewer, grading or any other improvement or structure, when the cost of the work to be done by the contractor, including but not limited to labor and materials, is twenty thousand dollars ($20,000.00) or more, without first having procured a license to engage in the business of contracting in this state, or who shall present or file the license certificate of another, or who shall give false or forged evidence of any kind to the Board, or any member thereof, in obtaining a certificate of license, or who shall impersonate another, or who shall use an expired or revoked certificate of license, shall be deemed guilty of a misdemeanor, and shall be liable to a fine of not less than one hundred dollars ($100.00), nor more than two hundred dollars ($200.00) for each offense, each day to constitute a separate offense. No action may be brought either at law or in equity to enforce any provision of any contract entered into in violation of this act ****.

§ 71-701 provides:

For the purposes of this act [§§ 71-701 — 71-720], a “contractor” is defined to be any person, firm, partnership, copartnership, association, corporation, or other organization, or any combination thereof, who for a fixed price, commission, fee or wage attempts to or submits a bid to construct, or contracts or undertakes to construct, or assumes charge, in a'supervisory capacity or otherwise, of the construction, erection, alteration or repair, or has or have constructed, erected, altered, or repaired, under his, their or its direction, any building, highway, sewer, grading or any other improvement or structure, except single family residences, when the cost of the work to be done, or done, in the State of Arkansas by the contractor including but not limited to labor and materials, is twenty thousand dollars ($20,000.00) or more. It is the intention of this definition to include all improvements or structures, excepting only single family residences.

Here the appellants argue that Smith was a contractor within the terms of §71-713 and that he was in violation of the provisions of that statute which strictly prohibit the enforcement of the contract. Appellee Smith responds that he was a mere employee of appellant Davidson and the statute is, therefore, inapplicable citing Ewing v. City of Helena, 207 Ark. 702, 182 S.W. 2d 940 (1944). In a later case we construed the statutory meaning of the word “contractor” in Ark. St. Lic. Bd. for General Contractors v. Lane, 214 Ark. 312, 215 S.W. 2d 707 (1951). There the State Board sought to enjoin the activities of a “supervisor” who was directing the construction of a drive-in theater. The supervisor was solely employed by the company which was building the drive-in. He did not hold himself out as an independent operator. Subcontractors for the drive-in dealt with another official of the company and the supervisor merely oversaw their performance. He had no authority to hire or discharge any workman, paid no workman, procured no material and had no other employment. We affirmed the trial court’s finding that the supervisor was not a “contractor” within the purview of the statute. The court-first noted that licensing statutes of this type “are to be construed strictly in favor” of the individual, the appellee here, and “every doubt as to construction must be resolved in favor of the one against whom the enactment is sought to be applied.” We then referred to the definition of a “contractor” in 17 C.J.S. Contracts §11, which identified a contractor as a party who contracts or covenants to construct works or erect buildings, perform work or supply articles at a certain price or rate usually for a specific improvement under a contract with an owner. We then quoted “[Contractor is ordinarily understood to be a person who undertakes to supply labor and materials for specific improvement under a contract with the owner.” Observing that the supervisor there was merely an employee of the owner, and not an independent operator, we held that he was outside of the statute, he had no interest in any of the construction contracts for the drive-in, he had no hiring authority, and he paid for none of the materials. We reaffirmed the standards delineated in Lane in Ark. State Licensing Board for General Contractors v. Rosamond, 218 Ark. 529, 237 S.W. 2d 22 (1951).

In the case at bar it is undisputed that appellee Smith is unlicensed and the contract sought to be enforced by him involved far in excess of $20,000. Smith testified that he was merely a carpenter employee acting under Davidson’s supervision. Smith’s son, Lionel Jr., and son-in-law, Barnett, testified that the appellant Davidson or others acting on his behalf continually supervised their work and made constant changes. Smith admitted in his pretrial deposition that he was an unlicensed contractor with thirty years experience. It was only at the trial he protested that he was only a carpenter employee. Objective factors preponderate that Smith was indeed a contractor within the statutory proscription. Smith admittedly undertook to renovate and remodel appellants’ building on a cost-plus 10% agreement, which is fixed rate contract. The owner of Nabholz testified that he supplied material and labor to Smith on the Davidson project. He said he subcontracted on a labor and material basis and not as a contract figure. They billed Smith direct. Nabholz’s manager of the heat, air, plumbing, and electrical department testified he believed he was contacted by Smith and they talked about the work to be done and the price. He said he dealt with Smith. Further, there was no contract and the work was done on a cost-plus basis and charged to Smith. The manager of the floor covering department for Nabholz testified that he was first contacted by appellee’s son. However, Smith and none of his people “working for him” had anything to do with the carpet after he was contacted. He testified that the materials and labor furnished by his department were “all billed to Mr. Smith.”

An installer mechanic for a wallpaper and drapery business testified he was employed by Nabholz (Smith’s subcontractor) to install the rods and drapes and hang the wallpaper in the Davidson Clinic. To his knowledge Smith had nothing to do with the selection of the drapes and wallpaper or where they were to be hung. He testified further that Smith had no supervision or control over his work. “No one actually supervised” his work. The manager of the electrical department for Nabholz testified that Smith called him and asked “if he could do some work for him” on the Davidson Clinic and was furnished a “blueprint of sorts.” He agreed with Smith to do the “work” on a “set price on labor and 20% on material.” Any changes he made were through Smith and he had very little dealing with appellants. He dealt through Smith. The individual who did the billing for Nabholz testified that its account for the “Davidson job” was in Smith’s name and was billed direct to him. Approximately 90% of these tickets were signed and picked up by Smith or one of “his” people.

Dr. Davidson testified that his check, an exhibit, dated December 31, 1973, was made payable to “Lionel Smith, primary contractor, plumbers and electricians, subcontractors, Nabholz suppliers and materials, $19,795” and that their agreement of cost plus 10% of the material and labor was not to exceed $35,000 on the completed project. Smith acknowledged that a minimum of $30,000 was discussed as the cost of the original remodeling.

Barnett, Smith’s son-in-law, testified that Smith paid them and he had no real contact money-wise with Dr. Davidson. Lionel Smith, Jr., testified that he turned his “time” in to his father. He did not share in the 10% profits with his father. At trial Smith said he was a board member of the local County Home Builders’ Association. He and his two coworkers were being paid $4 per hour. He did some of the supervising of his co-workers but not altogether and paid them after he was paid by appellant Davidson. He paid his co-workers, however, “out of his own pocket” before Davidson paid him anything. The payment on the cost plus 10% job “was between [me] and Dr. Davidson.” He said he wasn’t the “boss” in one way of speaking.” He didn’t withhold taxes and each man reported his own taxes and social security reports. In his pretrial deposition, as indicated, Smith testified he was a contractor for the past thirty years.

In summary, Smith verbally agreed with Davidson to accomplish a medical clinic project at a fixed rate; i.e., cost of material and labor plus 10%. He received 10% profit on the labor of his own co-workers. He subcontracted work and material to Nabholz. He supplied the labor and tools, authorized workmen from Nabholz to come to the site, supply materials, perform work, and charged the items to himself. Smith paid Nabholz through his own account. Smith averred in his complaint that he performed labor and provided materials in the construction and remodeling of a building (for a medical clinic) and that a balance of $21,490 (of the total cost of $57,164.61) was due and unpaid by appellants. The complaint included the Nabholz claim which, as indicated, was charged direct to Smith. The chancellor found that Smith himself owed Nabholz for the material and labor furnished to him in the building project. It is undisputed that Smith is not licensed and that the costs on the cost plus 10% agreement were far in excess of $20,000, the statutory limit. We find the evidence preponderates that Smith’s activities, pursuant to his cost plus agreement, were not that of a mere foreman or employee and further that Smith was a “contractor” as defined in § 71-701 and within the standards enunciated in Lane, supra. Consequently, it becomes unnecessary to discuss appellants’ other contentions.

The decree is reversed and the cause dismissed.


author: Elsijane T. Roy, Justice. George Rose Smith, Justice,

text:
    Anthony BELL and Michael WALKER v. STATE of Arkansas
    CR 75-122
    530 S.W. 2d 662
    Opinion delivered December 8, 1975
    [Rehearing denied Jan. 19, 1976.]

      Greene, Cottrell, Craig & Cloar, by: Ralph Cloar, Jr., Garner L. Taylor, for appellants.

      Jim Guy Tucker, Atty. Gen., by. Jackson Jones, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellants in this appeal, Michael Walker and Anthony Bell, were arrested on September 25, 1975, and charged with the murder of Marcelia L. Dillman which occurred during the course of a robbery. The State waived the death penalty. A jury found appellants guilty of first degree murder and they were sentenced to life imprisonment.

For reversal appellants rely upon several points. One assignment of error by both appellants is their assertion that they were entitled to separate trials either as a matter of right or because of the facts and circumstances of this particular case. Ark. Stat. Ann. § 41-4702 (Supp. 1973) designates as a capital felony “the unlawful killing of a human being when committed in the perpetration of * * * robbery.”

Ark. Stat. Ann. § 43-1802 (Repl. 1964), in part relevant to appellants’ contention, provides that “when two or more defendants are jointly indicted for a capital offense, any defendant requiring it is entitled to a separate trial. . .’’In Vault v. Adkisson, 254 Ark. 75, 491 S.W. 2d 609 (1973), it was pointed out that an appellant can invoke the procedure of a separate trial “as a matter of right” only when “the accused upon conviction is subject to the imposition of the death penalty.” Here the State waived the death penalty, a step which forecloses Walker’s plea for severance as a matter of right.

The alternative reason given by appellants for severance is that under the circumstances of this case it was an abuse of discretion for the trial court to refuse to grant severance because of the cross implicating aspect of their confessions.

Michael Walker’s statement was that he, Tony Bell and Wesley Long were riding around with some other “dude” and they were talking about robbing a store. Wesley told the “dude” to pull into the side of a store and the others got out while he (Walker) stayed in the car. Tony Bell was standing not far from the corner of the store and the other two went inside. He heard a shot from the store; then the others returned to the car. While driving home Wesley Long divided up the money and Tony Bell got some and he (Walker) got about $40.

Anthony Bell’s statement was essentially the same except he stated while riding around they “decided” to rob a store; identified the store as the Magic Market; Wesley Long got Mike’s gun and that he (Bell) stayed outside the store as lookout. After the shot the three ran and got in the car and on the way home they split the money, of which he received about $60 or $70 and Mike got about the same amount. Wesley told him a few days later the woman in the store had died.

In Mosby v. State, 246 Ark. 963, 440 S.W. 2d 230 (1969), the problem of cross-implicating confessions was raised, and we held that the unfairness inherent in such confessions could be avoided by either the granting of a separate trial or by deletion of the offending portion of the confession. The appellee made such deletions here. However, on cross-examination the State used undeleted confessions in the form of questions for the purpose of impeaching the credibility of the appellants, both of whom voluntarily took the stand. The trial court admonised the jury to consider these questions and answers as going only to credibility of appellants. Since both appellants testified the device of cross-examination enabled the appellants to avail themselves of every opportunity to refute any testimony adverse to their position. This satisfies the requirements of Bruton v. U.S. 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), in that confrontation is assured by virtue of the fact that here, unlike the situation in Bruton, both appellants had the opportunity to cross-examine on any information contained in the confessions. See also Miller v. State, 250 Ark. 199, 464 S.W. 2d 594 (1971). This same reasoning controls Appellant Walker’s contention that the trial court erred in denying his motion for a mistrial based upon the reading of Appellant Bell’s statement, which mentioned Walker, during the State’s cross-examination of Bell. The trial court warned the jury that such a statement could not be used in assessing guilt but only in assessing Bell’s credibility. Appellant Walker was able to counter the contents of the statement by his own testimony.

In United States ex rel Duff v. Zelker, 452 F. 2d 1009 (2nd Cir. 1971), cert. denied 406 U.S. 932, 92 S. Ct. 1807, 32 L. Ed. 2d 134 (1972), the court applied the rule on interlocking confessions and said:

We reject appellant’s claim that the admission of the written statements of Ferguson and Hill violated the rule of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The statements were similar to Duff’s own confessions, written and oral, which placed him at the scene with a fair implication of knowing participation. When the defendant’s ‘confession interlocks with and supports the confession of’ the co-defendant, there is no violation of the Bruton rule.

The Zelker case is quoted with approval in our case of Stewart & McGhee v. State, 257 Ark. 755, 519 S.W. 2d 733 (1975), cert. denied October 6, 1975.

Both appellants contend that their confessions were secured through coercion and were thus inadmissible. The standard controlling voluntariness of a confession has been expressed by this court in several cases. See Watson v. State, 255 Ark. 631, 501 S.W. 2d 609 (1973); Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968) and Mitchell v. Bishop, 248 Ark. 427, 452 S.W. 2d 340 (1970). Our latest expression of the test to be employed when involuntariness of confession is at issue is found in Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). There we said that:

. . . [I]n each case we will make an independent determination based upon the totality of the circumstances and that the trial judge’s finding of voluntariness will not be set aside unless it is clearly against the preponderance of the evidence, which we take to be the same standard of review as the ‘clearly erroneous’ rule followed by the federal courts, (citations omitted)

The burden is on the State to demonstrate that the confessions herein were “freely and understandably made without hope of reward or fear of punishment.” Harris, supra. In determining the voluntariness of an in-custody statement we have suggested that the following factors be considered:

. . ,[T]he age and the intellectual strength or weakness of the defendant, the manner in which he is questioned, the presence or absence of threats of harm or inducements in the form of promises or favor (citations omitted), and the delay between the advice of constitutional rights required by Miranda and the giving of the confession, (citations omitted)

Watson, supra.

One of the officers advised Appellant Walker that he would be better off if he made a statement - “got it off his conscience” - or words to this effect. However as in Degler, supra, there was no showing of how it would help and no offer of leniency or promise of favors, so this statement alone would not invalidate the voluntariness of the confession.

In accordance with the mandate of Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), the trial court conducted a hearing out of the presence of the jury and determined the appellants’ confessions were voluntary.

Appellants contend their confessions were extracted by physical brutality in the case of Michael Walker and psychological inducement in the case of Anthony Bell. The detectives involved in the actual interrogation deny having used any force on the appellants in order to secure a confession. The trial judge heard the testimony of the witnesses and observed their demeanor on the witness stand, an opportunity denied us as we review the cold record. Applying the guidelines articulated in Watson, supra, we cannot say that the appellants were not possessed of sufficient age or intellect to enable them to perceive and understand both the nature of the charge against them and the rights to which they were entitled concerning recourse to counsel. Both signed statements reflecting their understanding of the fact that they were to be provided counsel if they so desired at any time during the proceedings.

In Evans v. State, 251 Ark. 151, 471 S.W. 2d 346 (1971), the court said:

It is a firmly established rule of law that a defendant can intelligently waive his constitutional right to counsel. (citing cases)

Appellants Bell and Walker were 19 and 18 years old respectively at the time the confessions were made and both could read and write. Detective Thomas testified Bell told him that he had been to the eleventh grade, and Walker testified that he had a twelfth grade education. They were apprised of their constitutional rights and stated that they understood and voluntarily waived them.

In contrast to appellants’ allegations of physical abuse and psychological pressure Detectives Rounsavall, Harrison, Thomas and Best emphatically declared that no undue pressure or device was used to secure confessions from appellants.

Their interrogation was intermittent and lasted approximately four hours. There was some dispute as to whether appellants were shown a photograph of the victim and a statement by Long implicating them prior to their confessions. None of these circumstances, however, should call for suppression of these confessions. In Vaughn v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972), the trial court’s determination that a confession was voluntarily given was upheld even though the appellant had been questioned intermittently for a period of about twelve hours. In Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311 (1969), a case involving a boy sixteen, the court noted that “ [b]y the great weight of authority a minor is capable of making an admissible voluntary confession, there being no requirement that he have the advice of a parent, guardian, or other adult.” In Deglerv. State, supra, the court held that the fact the appellant was shown a statement made by another implicating the appellant and the fact that the appellant was shown a photograph of the victim did not require reversal of the trial court’s finding of voluntariness of the confession.

We said in Mullins v. State, 240 Ark. 608, 401 S.W. 2d 9 (1966) issues of “conflicting testimony between appellant and the officers made a question of fact to be decided by the court pursuant to Act 489 of 1965.”

Act 489 was codified in Ark. Stat. Ann. § 43-2105 (Supp. 1973) and provides for the court’s determination away from the jury, by a preponderance of the evidence, of whether a confession has been made voluntarily. The court concluded the confessions were voluntary in Denno proceedings of some length. Furthermore, the court submitted the issue to the jury instructing inter alia: “If you find that Michael Walker’s confession was not voluntarily made, then you should find him not guilty.” (The court gave a corresponding instruction for Appellant Bell.)

Here we have the testimony of the officers that the confessions were.voluntary - the Denno proceedings from which the trial judge found the confessions were voluntary - and finally the jury verdicts of guilty indicating the jury found the confessions were voluntary. Certainly it cannot be said that the trial judge’s findings are so “clearly erroneous” or so clearly against the preponderance of the evidence as to require a reversal in this case.

Appellant Bell also submits as error the State’s failure to produce at trial all material witnesses connected with his confession, citing in support of his position Smith v. State, 254 Ark. 538, 494 S.W. 2d 489 (1973). The facts in Smith are inapposite because in Smith a material witness to the question of the voluntariness of a confession Was absent from the Denno hearing, as well as the trial itself.

Here, even though Detective Rounsavall was not called by the State in the trial proper, he testified in the Denno proceeding, and the court determined the confession was voluntary. Since it is the court’s responsibility to decide the issue of voluntariness, not the jury’s, and since the court did hear the testimony of all the material witnesses at the Denno hearing, it was not error for the State not to call Detective Rounsavall to testify at the trial. Walker v. State, 253 Ark. 676, 488 S.W. 2d 40 (1972).

Appellant Walker also contends the trial court asked prejudicial questions of his attorney, Garner Taylor, called as a witness by co-defendant Bell. The questions posed by the court to attorney Taylor touched upon Walker’s physical appearance while in jail. The Denno hearings took place out of the presence of the jury, thus eliminating any risk of the trial court’s queries having any prejudicial impact on the jurors at that time. Regarding some questioning of attorney Taylor by the court during the trial itself, the court indicated that Taylor was free to decline to answer at any time if he was of the opinion his testimony would prejudice his client in any way. A trial judge “has the right and the duty to ask questions to clear up an obscurity in the testimony or even to develop facts in regard to some feature of the case he feels has not been properly developed. ” Jordan v. Quinn & Etheridge, 253 Ark. 315, 485 S.W. 2d 715 (1972). It cannot be said from the record that the court’s questions in this instance generated that quantum of influence which would sway a jury toward a decision of guilt.

Another point urged by Appellant Walker as grounds for reversal is the trial court’s denial of appellant’s request that Dr. Worthie R. Springer, Jr. be allowed to testify as to appellant’s medical history. It appears that the doctor first saw the appellant a week after Walker was interrogated by the officers on September 25, 1974.

Dr. Springer’s visitor’s pass was dated October 3, 1974, and no one can see a prisoner without such a pass. The doctor was allowed to testify that Appellant Walker had suffered contusions, abrasions and sprains, evidencing physical abuse, but he did not know when the injuries occurred nor by whom they were inflicted. If he had been allowed to testify as to medical history it would have reflected Walker told him that he was physically abused by the interrogating officers.

On this point, we note that on September 26th, the day after the alleged physical abuse occurred, attorney Taylor saw both appellants and his testimony was that he did not see any signs of physical abuse (blood and bruises) on either appellant. This testimony would be more significant than Dr. Springer’s because the doctor did not see appellant Walker until a week after the alleged mistreatment.

Furthermore, we find no error in the court’s refusal to allow Dr. Springer to testify as to the medical history which Appellant Walker had related to him but about which Dr. Springer had no personal knowledge. Hogan v. Nichols, 254 Ark. 771, 496 S.W. 2d 404 (1973).

Appellant Walker’s last two alleged errors are that the trial court erred in denying appellant’s motion for a directed verdict and that the evidence is insufficient to sustain the conviction. The motion for directed verdict was based on the allegation that there was no corroboration of the testimony of the accomplice. In Pitts v. State, 247 Ark. 434, 446 S.W. 2d 222 (1969), referring to Ark. Stat. Ann. § 43-2116 (Repl. 1964), we said:

In construing the statute we have held that the test of the sufficiency of the corroboration whether, ‘if the testimony of the accomplice is eliminated from the case,’ the other evidence establishes the required connection of the accused with the commission of the offense, (citation omitted)

In the instant case the confession of Appellant Walker provided the “other evidence” needed to effect the “required connection of the accused with the commission of the offense.” See also Petron v. State, 252 Ark. 945, 481 S.W. 2d 722 (1972). The same analogy would be applicable to Bell if he had raised the objection.

As to the sufficiency of the evidence, there was testimony of an accomplice to this crime corroborated by the voluntary confessions of the appellants. This evidence is sufficient to sustain the convictions of the appellants. On appeal, the court reviews the evidence and all reasonable inferences deducible therefrom in light most favorable to the appellee and affirms if there is any substantial evidence to support the trial court’s findings.

In Stewart & McGhee v. State, supra, the appellants were charged with murder in the perpetration of an attempt to commit robbery. There we said:

. . .[U]pon appellate review, it is firmly established that we consider that evidence which is most favorable to the appellee, with all reasonable inferences deducible therefrom, and affirm if any substantial evidence exists to support the jury verdict. Miller v. State, 253 Ark. 1060, 490 S.W. 2d 445 (1973).

Having considered every objection and assignment of error as we are required to do by Ark. Stat. Ann. § 43-2725 (Supp. 1973) we find no error requiring reversal.

Affirmed.

George Rose Smith, J., dissents.

George Rose Smith, Justice,

dissenting. In passing upon the voluntariness of a confession we review the record independently and set aside the trial court’s finding if it appears to be clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). I find that to be true in this instance. The two appellants, both under twenty years of age, were questioned some five months after the crime took place. The officers had no evidence against them except the statement of an accomplice; so confessions were essential to the State’s case. Bell had an attorney, who had instructed him not to make any statements to the police. Walker unquestionably had been subjected to physical abuse by someone. The interrogation lasted four hours, with the officers being unable to remember what was discussed over such a long period of time. An in-custody confession is presumed to be involuntary. Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968). Here I cannot conscientiously say that the State’s evidence is sufficient to overcome the presumption.


author: Carleton Harris, Chief Justice.

text:
    Eugene HORTON v. John EATON
    75-169
    530 S.W. 2d 669
    Opinion delivered December 15, 1975
    [Rehearing denied January 19, 1976.]

      Adams & Covington by: Donald J. Adams, for appellant.

      Pearson & Woodruff, by: C. Thomas Pearson Jr., for appellee.
   Carleton Harris, Chief Justice.

John Eaton, appellee herein, instituted suit against Eugene Horton, appellant herein, alleging that Horton had alienated the affections of appellee’s wife, and additionally, that Horton had committed an assault and battery on Eaton. Punitive damages were sought as well as compensatory damages in both causes of action, and on trial, the jury returned a verdict for appellee in the amount of $52,000. From the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the court erred in overruling appellant’s motion for a new trial, and it is also contended that the trial court was without authority to reinstate the jury verdict.

Appellee, inler alia, contends that the appeal should be dismissed because of appellant’s failure to file a timely notice of appeal. We agree with this contention, and thus do not reach the merits, but it is necessary to describe the unusual procedure in the trial court, in explaining our determination.

On January 10, 1975, the jury verdict was returned, and the judgment was entered on January 17, 1975. In the meantime, on January 13, appellant had filed a motion for a new trial. Of course, had this not been done, appellant would have had thirty days from the entry of the judgment on January 17, to give notice of his appeal. Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). See also Cranna v. Long, 225 Ark. 153, 279 S.W. 2d 828. However, upon moving for a new trial, the provisions of §§ 27-2106.3 — 2106.6 came into play. The actual pertinent section here involved is §27-2106.5, which provides that after the motion for new trial has been denied by the trial court, or is deemed to have been disposed of, the losing party then has ten days to give notice of appeal (provided that he never has less than thirty days from the original judgment to give notice of appeal).

After the appellant had made his January 13 motion for a new trial, the trial court entered its order on the motion on January 22, containing the following provisions:

“That the jury in this case did not act under the influence of passion or prejudice and the trial jury should not be subject to criticism by this Court nor any of the parties; That their verdict was rendered with good conscience on their part.
“That the Arkansas Supreme Court has recently adopted a rule of civil procedure which provides that a trial Court in granting a motion for a new trial must set out the reasons therefor, that this order does not at this time comply with said rule, but the Court retains jurisdiction of this question for the purpose of making said detailed findings in the event the same becomes necessary. ***
“IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that, subject to the limitations and conditions placed thereon, herein, remittitur is hereby granted as follows:
“The judgment of $52,000 is hereby reduced to $26,000 upon the condition that if plaintiff shall refuse to accept same within 15 days the Court will grant a new trial; That if plaintiff elects to accept $26,000 in lieu of a new trial, then defendant shall have 30 days within which to pay said sum of $26,000 in full and if he shall then fail to pay said sum in full this order shall be null and void and the original judgment of $52,000 shall be reinstated. ”

On February 6, 1975, appellee formally (in writing) consented to remittitur “conditioned upon full compliance by the defendant with the order of the court and upon full payment by the defendant to the plaintiff of the sum of $26,000 within 30 days.” On that same day, the court entered the following order:

“Now on this day the Court finds that the Plaintiff John Eaton has by his Response to Order, filed herein this date, accepted remittitur under the terms set out in the Court’s order of January 22, 1975; That said acceptance has been made in the 15 days provided; that defendant has 30 days from this date to pay said judgment or the $52,000judgment will be reinstated in full.”

Appellant did not pay the $26,000 and on March 10 and 12, writs of execution and of garnishment were issued. Thereafter, on March 18, appellant filed a “Motion to Quash Execution,” and the issuance of these garnishments, asserting that same “are premature in that no final judgment has been entered in this cause, and that these garnishments should be quashed pending the entry of final Judgment in favor of Plaintiff.”

Subsequently, on March 21, the court entered the following order:

“That judgment on jury verdict of January 10, 1975 in the sum of $52,000 was signed and filed with the clerk on the 17th day of January 1975; that an order was entered by this Court dated 17, January 1975, which was filed on the same date, wherein the Court had a conditional remittitur in this case the conditions of which are set out therein; that on February 6, 1975, the Court entered an order finding that the plaintiff John Eaton had complied with all the terms of the conditional remittitur by accepting the remittitur and the Court in said order gave the defendant 30 days within which to pay same; that said sum was not paid within 30 days and the plaintiff has had execution issued upon the $52,-000 judgment which is now in effect; that defendant notifies the Court in open Court that he desires to appeal to the Arkansas Supreme Court and the Court finds that when the defendant has filed motion of appeal and designation of record in this case he shall also file in this case good supersedeas bond; otherwise execution shall not be quashed.
“That this Court is not the proper tribunal to determine if defendant’s appeal is timely.”

Let it be here said that we do not pass upon the legality of the trial court’s action in granting the remittitur under the conditions heretofore set out, since we do not consider that fact to have any bearing on whether the notice of appeal was given in a timely manner. Appellant gave his first notice of appeal on March 26, 1975, such notice stating that he is appealing from the March 21 order of the court “finding that the judgment of $52,000, is now in full force and effect ***.”

We have concluded that the notice of appeal was not timely. In Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605, this court said:

“For a judgment to be final and appealable, it must in form or effect: terminate the action; operate to divest some right so as to put it beyond the power of the court to place the parties in their former condition after the expiration of the term; dismiss the parties from the court; discharge them from the action; or conclude their rights to the matter in controversy.”

The order of February 6, 1975, disposes of the litigation in the trial court, i.e., it terminated the action; it concluded the rights of the parties to the matter in controversy; and such judgment certainly operated to “put it beyond the power of the court to place the parties in their former condition after the expiration of the term. ” Whatever was done by appellant (whether he paid the $26,000 or did not pay it), the judgment was final, because it was certainly definite that the motion for new trial had been denied. This being true, the judgment was final thirty days from February 6, 1975, or more specifically stated, on March 8, 1975, and, as provided by § 27-2106.5, notice of appeal should have been given within ten days, or more specifically, March 18, 1975. Since the required notice was not given until March 26, it is at once evident that the notice of appeal was not timely, and the appeal must be dismissed.

It is so ordered.