author: David Newbern, Justice. Tom Glaze, Justice, Darrell Hickman, Justice, Steele Hays, Justice,

text:
    Cheryl BRUCE, By Her Mother and Father, Janice BRUCE and Herman L. BRUCE v. W.H. DILLAHUNTY, et al.
    87-83
    739 S.W.2d 522
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987
    [Rehearing denied December 21, 1987.]

      Lynn Farr, Central Arkansas Legal Services, for appellant.

      Wright, Lindsey & Jennings, for appellee.

      Hickman, Hays, and Glaze, JJ., would grant rehearing.

   David Newbern, Justice.

This is a habeas corpus case brought by a minor, through her parents as next friends, to cause the appellees, an attorney and unknown other persons, to produce her baby girl. The chancellor denied the writ on the basis that the minor appellant, Cheryl Bruce, had executed a lawful consent to the adoption of the child. We must reverse and remand the case, as we hold Ms. Bruce has shown a right to the custody of her child, and the record does not demonstrate that any such right to custody was shown to have been in the appellees.

The facts reviewed by the chancellor were stipulated by the parties. Cheryl Bruce is an unmarried minor who, at the age of sixteen, gave birth to a daughter on July 28,1986. The following day she executed an instrument entitled “Consent to Adoption and Release of Custody” by which she purported to release all her rights to custody of her child and to give her full consent to the adoption of the baby. The instrument did not name the prospective adoptive parents, but stated Cheryl Bruce was “. . . willing for her physician to place the infant child with a married couple for the purpose of seeing that the infant is properly maintained and cared for and for the purpose of having the infant adopted by reliable and fitting persons. . . .” Ms. Bruce’s parents, who are also appellants, executed separate consents to the adoption of the baby. On August 1,1986, three days after she had executed the document, Ms. Bruce called W. H. Dillahunty who, she had been told, was the attorney representing the prospective adoptive parents and revoked her consent and attempted to regain custody of the baby. Later, on August 25,1986, she obtained counsel and formally withdrew her consent by affidavit. Her parents also revoked the consent instruments they had executed. The baby was not returned to Ms. Bruce despite her request and her revocation of the instrument described above.

In their petition for a writ of habeas corpus, filed on September 8,1986, Ms. Bruce and her parents do not allege, nor have they contended since, that the consent and relinquishment instruments were executed other than voluntarily by them. They alleged that the instrument Ms. Bruce signed was ineffective because it failed to comply with Ark. Stat. Ann. § 56-220 (Supp. 1985) which states that the instrument by which parental rights are relinquished is invalid unless it contains a statement acknowledging that it may be revoked within ten days after it is executed. The petition concluded by alleging that the detention, and the assertion of the right to custody of the baby by “the respondents is not authorized by any judgment, decree or order or by any provision of law and therefore is illegal and invalid.”

The chancellor denied the petition, finding that § 56-220 is inapplicable because it applies only to “agency” adoptions as opposed to “direct” adoptions with respect to which the matter of consent is governed by Ark. Stat. Ann. § 56-208 (Supp. 1985) which contains no requirement that the right to revoke be stated in the instrument of consent to adoption.

1. The statutes

In Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982), a minor contested the adoption of her child after the adoption had taken place. She contended that, because she was a minor, the adoption was illegal absent the appointment of a guardian ad litem for her, citing Schrum v. Bolding, 260 Ark. 114, 359 S.W.2d 415 (1976), a case holding pursuant to our previous adoption law that a guardian ad litem was required for a minor parent whose consent was necessary to the adoption, and Ark. R. Civ. P. 17(b). We held that under the Revised Uniform Adoption Act, the act which contains the sections noted above, a minor who has consented to adoption need not even be notified of the formal adoption proceedings, and thus no guardian ad litem was necessary.

In our decision in Temple v. Tucker, supra, we uttered the following obiter dicta:

We might point out the act does not preclude a careful practitioner from seeking the appointment of a guardian ad litem for a minor mother and certainly that precaution would lessen the probability of an attack on the adoption decree in a later proceeding, as occurred in this case, and of a subsequent contention that the minority of the parent contributed to an invalid consent. See 2 UALR L.J. 135 (1979).
We might well point out that the new adoption act provides yet another method of surrendering parental rights which is intended to be followed where the consenting mother surrenders her child, not directly to the adopting couple, as here, but to an agency, which may later place the child for adoption by parents it selects. The latter method is set out in Section 20 of the act (Ark. Stat. Ann. § 56-220[)] . . . and provides that the consenting parent, regardless of age, can appear before a judge of a court of record or before a representative of the agency and relinquish her parental rights as well as the rights to later withhold her consent. Under this procedure the consenting parent has ten days in which to revoke her consent and the relinquishment is invalid unless this right of withdrawal is stated. [277 Ark. at 84-85, 639 S.W.2d at 358-359]

It is the latter of these statements upon which the chancellor relied in this case to hold that the protections offered to a minor parent in § 56-220 do not apply where the consent is to a “direct” adoption, as provided for in § 56-208, and thus the consent executed by Ms. Bruce was valid.

At least some doubt is cast upon our statement that § 56-220 applies only to “agency” adoptions by the fact that after our decision in Temple v. Tucker, supra, the general assembly, by Act 879 of 1985, amended that section to reinstate the requirement that a guardian ad litem be appointed for a minor parent purporting to relinquish her parental rights. If called upon to do so, we might have difficulty today saying that the general assembly’s intent was to distinguish between so-called “private” adoptions and “agency” adoptions in this respect. A second difficulty we would have in applying our earlier decision to this case is that, although this was not a case in which an adoption agency was involved, there clearly were intermediaries here, i.e., Mr. Dillahunty and the physician, and the record indicates that Ms. Bruce was not told, and may not know to this day, who was to adopt her child. We can see no logic in providing that a minor can relinquish her rights in this situation, where she is neither protected by a guardian ad litem nor told of her right to revoke her relinquishment, and then providing such protections when an adoption agency is involved. We need not, however, answer that question in this case.

2. Habeas corpus

This is not an adoption case. We are not deciding, as we had to in Temple v. Tucker, supra, the validity of an adoption. Literally translated, “habeas corpus” means, “You have the body.” State Department of Public Welfare v. Lipe, 257 Ark. 1015, 521 S.W.2d 526 (1975). The procedure for issuance of the writ of habeas corpus is set out in Ark. Stat. Ann. §§ 34-1701 through 34-1746 (Repl. 1962). While much of the language of those sections refers to custody of a “prisoner,” the writ was obviously intended to be available in the situation before us now. Section 34-1704 refers to seeking the writ “. . . against any person who shall unlawfully have or detain in custody or bondage any infant. . . .” When the person to whom the writ is directed has custody of “the body” pursuant to lawful process the court in which the writ is sought clearly may not, according to § 34-1734, “inquire into the legality or justice of the process, judgment, decree or order of any court, legally constituted, nor into the justice or propriety of any commitment for contempt made by any court, officer, or body corporate, according to law, and plainly charged in such commitment,. . . .” The point to be made here, however, is that there is no such order. We have no idea why, but the record before us shows no temporary custody order, and it does not even show that any party or person has filed a petition for adoption of the child.

A chancery court may, in response to a request for a writ of habeas corpus, entertain a full-blown custody hearing and make a determination of who should have custody in accordance with the best interests of the child. Tucker v. Tucker, 195 Ark. 632, 113 S.W.2d 508 (1938). We have found three cases in which such a hearing resulted in denial of the writ where custody of the child was placed in a party other than the natural parent of the child and the writ was pursued by the natural parent. In Verser v. Ford, 37 Ark. 28 (1881), the child’s mother died shortly after giving birth, and the father allowed the grandparents to care for the child for some three years thereafter. In response to the father’s request for a writ of habeas corpus, it was held that where the father had allowed the special ties to grow between the grandparents and the child, it would be wrong to allow him to regain custody of the child even though there was no question of his fitness to have the custody of his daughter. The court made strong references to the highly satisfactory arrangement of leaving the child with the grandparents upon whom the duty of caring for the child would devolve if something happened to the father. It is evident from the opinion that the trial court had before it both the father and the grandparents and was making a determination of which home would suit the best interests of the child.

In Washaw v. Gimble, 50 Ark. 351, 7 S.W. 389 (1887), a child was given by a father to members of his church congregation, who were not related to him or the child, when the child was three days old. Some three years later he began proceedings to regain the custody of the child, and ultimately sought a writ of habeas corpus. The writ was denied, and we affirmed. We recognized the paramount right of a parent to a child, but, as in the Verser case, we held that where the father had allowed the familial ties to grow and be nurtured the welfare of the child required that those ties not be abruptly terminated. We said the father could forfeit his natural preference by his own conduct in allowing the child to remain in such a situation over a long period. Again, we noted, “[t]he circuit judge had the parties, the witnesses and the child before him, and was charged with the exercise of a sound discretion in disposing of the question.” 50 Ark. at 355, 7 S.W. at 390.

In Massey v. Flinn, 198 Ark. 279, 128 S.W.2d 1008 (1939), a habeas corpus petition resulted in a fitness hearing in which the chancellor, on the basis of the child’s best interests, divided custody between the child’s father and Mrs. Flinn, an unrelated woman the father had allowed to keep the child since the death of the child’s mother. Eleven months after the child had gone to live with Mrs. Flinn, the father and Mrs. Flinn had entered an agreement in writing spelling out the right of Mrs. Flinn to custody of the child and the father’s right to visit. While we recognized the instrument as indicative of the father’s state of mind when it was entered, we noted it was an unenforceable agreement because public policy prohibits recognition of an agreement by which a father “gives away” his child.

In this case the stipulated facts before the chancellor made no reference to allegations of unfitness or findings of fitness of Ms. Bruce or any other person. Nor has there been any hearing with respect to the best interests of the child. We have no previous order conferring custody of the child upon anyone. Given the natural right of the parent to the custody of her child mentioned in the cases cited above, and again alluded to in Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973), and in Massey v. Flynn, supra, we conclude that the chancellor had no basis for denial of the writ. Although it is now some eighteen months since Ms. Bruce’s child was born and presumably placed with a married couple, the passage of time has not been the fault of Ms. Bruce, as she has tried to obtain the return of her child since the fourth day of its life.

We reverse the chancellor’s decision because the respondents did not show entitlement to the child’s custody in the face of the mother’s claim as the child’s natural parent, thus the writ should have issued. We remand the case for the entry of an order consistent with this opinion, and we note that our decision is without prejudice to the seeking of a temporary custody order pending the filing and adjudication of a petition for adoption.

Reversed and remanded.

Hickman and Hays, JJ., dissent.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. In my view, the majority reached the correct result but for a wrong reason. The majority opinion seems to state, or at least implies, that the adopting parents could not have prevailed in the biological mother’s habeas corpus action because those parents-to-be had no order giving them possession or custody of the newly-born infant. The cases cited in the majority opinion actually run counter to the majority’s point in this respect. For example, in the landmark cases of Verser v. Ford, 37 Ark. 28 (1881) and Washaw v. Gimble, 50 Ark. 351, 7 S.W. 389 (1887), this court affirmed the trial court’s denial of a writ of habeas corpus in each instance because the natural parent abandoned his child to the care of others and familial ties had been established with the new custodians. While no order awarding custody to others was involved in either Ver ser or Washaw, the majority attempts to distinguish these cases from the instant one because no hearing was had here concerning the parent’s (mother’s) fitness or the child’s best interests. If such a distinction is adopted by this court, then adopting parents will be required to obtain a court order awarding them custody of the infant in addition to a legally executed consent by the infant’s biological parent(s). Such a requirement has never been required under Arkansas’s adoption laws, nor do I think it should be.

In this habeas corpus case, the chancellor determined the adopting parents had lawful custody of the infant. Arkansas, as the majority points out, allows custody issues to be resolved in such habeas corpus proceedings. To reverse the chancellor, this court must decide the chancellor was wrong in his findings, and, I submit, we must do so after a review of the facts and law under which the adopting parents gained physical custody of the infant. To do so requires us to look to Arkansas’s adoption laws — a process the majority deems is unnecessary to decide the case.

In an effort to make my position brief, it is sufficient to say that the consent executed by the biological mother did not comply with Ark. Stat. Ann. § 56-220 (Supp. 1985) which I believe controls the type consent required under the circumstances involved in this case. The trial court deemed § 56-220 inapplicable, and in doing so, it relied on this court’s decision in Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982) wherein we indicated § 56-220 applies only to adoptions where an adoption agency is involved. This court was wrong in making that statement, since a quick perusal of § 56-220(e) dispels any such thought.

Section 56-220 makes provisions for relinquishment and termination of the requirement of consent by a parent. See Commissioners’ Note to § 19 of the Revised Uniform Adoption Act (1971). Section 56-207 of Arkansas’s Revised Uniform Adoption Act sets forth the persons whose consents are not required, and refers specifically in subsection (a)(4) to a parent who has relinquished his (or her) right to consent under § 56-220. Under § 56-220(b), if the parent is a minor, the consent or written relinquishment by the minor must be signed by an appointed guardian ad litem in the presence of an agency taking custody of the child or, where no agency is involved, in the presence of a judge of a court of record. A minor parent’s relinquishment may be withdrawn within ten days after it is signed or the child is born, whichever is later, and the relinquishment is invalid unless it states the parent has the right of withdrawal. See § 56-220(b)(l).

In the instant case, none of the requirements in § 56-220(b) were met, plus the minor mother promptly attempted to withdraw her consent three days after she signed it. For these reasons, the adoptive parents never obtained lawful possession or custody of the infant. Having failed to obtain lawful custody of the infant under our applicable adoption laws, the adoptive parents, barring other grounds sufficient to show lawful custody, should not have prevailed in this habeas corpus action. I concur in the result reached by the majority.

Darrell Hickman, Justice,

dissenting. The majority has simply misread the law. No statute or case law requires that a court order exist to legally justify persons other than natural parents to hold a child. Ark. Stat. Ann. § 34-1704 (Repl. 1962) reads:

[The writ of habeas corpus shall be granted] upon the application, and in the name of the father, mother, guardian, or next friend of any married woman or infant, against any person who shall unlawfully have or detain in custody or bondage any infant or married woman; and like proceedings shall be had for hearing and determining the cause, and affording the relief demanded, as in other cases.

Ark. Stat. Ann. § 37-1734 (Repl. 1962) provides:

No court under this act shall in any other matter, have power to inquire into the legality or justice of the process, judgment, decree or order of any court, legally constituted, nor into the justice or propriety of any commitment for contempt made by any court, officer, or body corporate, according to law, and plainly charged in such commitment, as hereinbefore provided.

These statutes mean that if an order or judgment exists, its legality cannot be challenged in a habeas corpus proceeding. They do not say that a legal consent to adoption is worthless. Those who have a child pursuant to a valid consent have the infant child “lawfully”; therefore, the trial judge properly denied the petition.

It was not denied that the written consent, signed by the mother and her parents, was voluntary. The trial judge held the consent valid according to the law. The majority does not challenge that finding. That legal consent gave these appellees a perfect legal right to custody of the child and the right to adopt the child. It has not been declared void, set aside, nor withdrawn, and until one of these is done, it should stand.

The legal question is whether a mother can withdraw her consent to the adoption of her child? The answer is yes, but the manner and circumstances in which it can be done vary. In this case the mother simply wants to withdraw her consent; she alleges no fraud, mistake or other good cause. She can attempt to withdraw that consent, just as she did, by filing a petition for habeas corpus. See French v. Catholic Community League, 69 Ohio App. 442, 44 N.E.2d 113 (1942). Alternatively, she may do so by intervening if adoption proceedings have been filed. See Ark. Stat. Ann. § 56-209 (Supp. 1985).

In Combs v. Edmiston, 216 Ark. 270, 225 S.W.2d 26 (1948), this court discussed the two rules of law that had evolved regarding the rights of natural parents to withdraw consent, citing Annotation, Right of natural parent, or other person whose consent is necessary to adoption of child, to withdraw consent previously given, 138 A.L.R. 1038 (1942) and Annotation, Right of natural parent, or other person whose consent is necessary to adoption of child, to withdraw consent previously given, 156 A.L.R. 1011 (1945). The court stated the general rule as follows:

‘The rule in a majority of the jurisdictions wherein the question has arisen is that a natural parent’s consent to the proposed adoption of a child, duly given in compliance with a statute requiring such consent as a prerequisite to an adoption, may be effectively withdrawn or revoked by the natural parent before the adoption has been finally approved and decreed by the court.’

The other rule recognized in Combs is:

‘. . . that the trend of the more recent authority is toward the position that where a natural parent has freely and knowingly given the requisite consent to the adoption of his or her child, and the proposed adoptive parents have acted upon such consent by bringing adoption proceedings, the consent is ordinarily binding upon the natural parent and cannot be arbitrarily withdrawn so as to bar the court from decreeing the adoption, particularly where, in reliance upon such consent, the proposed adoptive parents have taken the child into their custody and care for a substantial period of time, and bonds of affection, in the nature of a “vested right,” have been forged between them and the child.

The court said that it did not have to choose the better of these two rules because the teenage mother had signed the consent under duress. In Martin v. Ford, 224 Ark. 993, 227 S.W.2d 842 (1955), the court followed the rule announced in A. v. B., 217 Ark. 844, 233 S.W.2d 629 (1950), to govern withdrawal of consent by a parent. It reads:

The question whether the natural parent may revoke consent previously given depends upon all the circumstances of the particular case, which may include such a variety of matters as the terms of the particular statute; the circumstances under which the consent was given; the length of time elapsing, and the conduct of the parties between the giving of the consent and the attempted withdrawal; whether the withdrawal was made before or after institution of adoption proceedings; the nature of the natural parents’ conduct with respect to the child both before and after consenting to its adoption; the “vested rights” of the proposed adoptive parents with respect to the child; and, in some cases, the relative abilities of the adoptive parents and the natural parents to rear the child in a manner best suited to its normal development, and other circumstances indicative of what the best interests of the child require.’

Statutory law recognizes that before withdrawal of consent is permitted, the best interests of the child must be considered. Ark. Stat. Ann. § 56-209 (Supp. 1985), provides:

(a) A consent to adoption cannot be withdrawn after the entry of a decree of adoption.
(b) A consent to adoption may be withdrawn prior to the entry of a decree of adoption if the Court finds, after notice and opportunity to be heard is afforded to petitioner, the person seeking the withdrawal, and the agency placing a child for adoption, that the withdrawal is in the best interest of the individual to be adopted and the Court orders the withdrawal.

A recent annotation deals with the entire spectrum of the problem; consent before any adoptive proceedings are initiated, before the placement of a child, and after court orders. Annotation, Right of natural parent to withdraw valid consent to adoption of child, 74 A.L.R.3d 421 (1976).

I think the majority decision is wrong for several reasons. A valid lawful consent was granted; it has not been withdrawn in a proper proceeding, and until it has been, the custodians of the child have a superior legal right. Absent good cause to withdraw the consent, such as fraud or duress, a determination of whether withdrawal is in the best interests of the child must be made.

In Van Wey v. Van Wey, 656 S.W.2d 731 (Ky. 1983), the Kentucky court adopted what I think is the best rule:

We hold with the trial court that the initial voluntary consent placed this case squarely in the category of cases holding that a parent who has transferred possession and custody of his or her child to another has surrendered the primary right of custody and thereafter the court shall determine custody on the basis of the best interest of the child.

The decision is wrong in my judgment from a legal standpoint, but what is more disturbing is that it is irresponsible. We have a young child’s future at stake, and we should not decide that future without foremost consideration of the child’s best interests.

I would remand the case for that determination.

Steele Hays, Justice,

dissenting. The majority opinion directs the chancellor to return the custody of this infant girl to the petitioners without prejudice to the unnamed respondents to establish their adoptive rights to this child. Thus the petitioners, about whom we know nothing except that they knowingly gave up the custody of the child for adoption, will regain custody under this opinion by the summary process of habeas corpus and without any determination of the welfare and best interest of the child. The tragic consequence is that a fifteen month old girl who bears no part of the responsibility for this unhappy situation and who has known only one set of parents from birth is removed from familiar surroundings to foreign surroundings and into the custody of persons who are, to her, total strangers, albeit her biological parent and grandparents. If that wrenching experience must occur, it ought to come, if at all, after, rather than before, the legal issues are fully resolved, governed by the best interest of the child. I do not question the right of the petitioners to have the validity of their consent judicially determined, but I earnestly disagree with the majority that the custody of the child should be changed before those issues are decided.

The majority opinion makes only passing mention of the best interest of the child, applying instead the stylized properties of habeas corpus — which do not lend themselves readily to the just determination of adoption disputes. Yet even where habeas corpus is the procedural mode we have consistently looked first to the welfare of the child and denied the writ where the welfare of the child warranted, even in cases where the custody was far more ambiguous than here. In all of the cases cited by the majority where habeas corpus was sought, the court weighed the best interest of the child as decisive: Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973) (“The fitness of the petitioner to have custody is the pivotal issue.") (my italics); Massey v. Flinn, 198 Ark. 279, 128 S.W.2d 1008 (1939) (“The prime concern and the controlling factor is the best interest of the child.”) (my italics). Tucker v. Turner, 195 Ark. 632, 113 S.W.2d 508 (1938); Washaw v. Gimble, 50 Ark. 351, 7 S.W. 389 (1887) and Verser v. Ford, 37 Ark. 27 (1881).

In deciding this case as it has, the majority, I believe, has disregarded two important and overriding considerations: (1) The Revised Uniform Adoption Act (on which, it might be noted, the petitioners rely for the disavowal of their consents) provides that before a consent to adoption is withdrawn the best interest of the child shall be considered by the court (Ark. Stat. Ann. § 56-209);and (2) itwas the voluntary and purposeful act of the petitioners, rather than the prospective parents, in giving up this child for adoption that brought about the dreaded situation now before us. I believe the welfare and best interest of the child should first be resolved before any change of custody, temporary or permanent, is ordered and for that reason I dissent to the majority opinion.

       Ark. Stat. Ann. § 56-201 et seq. (Supp. 1985).


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Mikel Wayne HOUSTON v. STATE of Arkansas
    CR 87-85
    739 S.W.2d 154
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987

      Hale, Ward, Young, Green, Nixon, Jacobs & Hickey, by: Stephen R. Cobb, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Mikel Wayne Houston, was convicted of and sentenced to life imprisonment for the rape of his daughter who was less than fourteen years old. His points on appeal are: (1) that the evidence was not sufficient to sustain his conviction, (2) that the bifurcated trial and sentencing procedure for habitual offenders is unfair, and (3)that the state’s brief should be stricken because it asks that we take judicial notice of a matter which was not presented to the trial court. We find the evidence was sufficient and that the appellant has not demonstrated that he was prejudiced by the bifurcated trial and sentencing procedure. While we agree the state should not ask that we take judicial notice of a matter which should have been presented at trial, the state’s error in this regard does not affect the outcome of the case. As we find no prejudicial error, the judgment is affirmed.

1. Sufficiency of the evidence

The appellant and the mother of the alleged victim are divorced. The appellant’s daughter testified that one evening when she was visiting in the appellant’s home she was sleeping in a bed with another child when she awakened to find the appellant next to her and felt his finger in her vagina. The appellant’s home was also occupied by his brother and sister-in-law and his mother. There is some evidence that another child, a cousin, was visiting on the evening in question. The appellant’s daughter testified that she told her aunt about what had happened, but her response was one of disbelief, and she told the appellant’s daughter not to say such things. The daughter returned to the appellant’s home some two weeks later, and she testified that on that occasion a similar event occurred. She did not tell her mother, but her mother heard about the incidents from relatives.

The contention of the appellant here is that there were others in the home who would have observed it had any such incident occurred, thus it cannot have happened. He also notes some inconsistencies in the testimony of his daughter and the reports she gave the authorities on such matters, such as the dates the incidents occurred. We need not detail the appellant’s arguments on these matters, as none of them changes the fact that his daughter gave positive and unequivocal testimony that his finger penetrated her vagina. According to Ark. Stat. Ann. § 41-1803 (Supp. 1985), that is rape.

We have held many times that the alleged rape victim’s testimony satisfies the requirement that there be substantial evidence that the appellant committed the crime. Sales v. State, 291 Ark. 338, 724 S.W.2d 348 (1987); Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). We find no error on this point.

2. Bifurcated trial

When the state wishes to introduce evidence that an accused is an habitual offender by producing evidence of previous convictions, the jury is instructed to determine guilt or innocence. The state then presents evidence of previous convictions to the judge who, after ascertaining the number of previous convictions, informs the jury and instructs them as to sentencing of an habitual offender. Ark. Stat. Ann. § 41-1005 (Supp. 1985). The appellant contends that a seasoned juror will know an accused is an habitual offender if sentencing instructions are not given at the same time the jury is instructed with respect to the question of guilt or innocence.

This argument was rejected in Burris v. State, 291 Ark. 157, 722 S.W.2d 858 (1987), and in Woods v. State, 260 Ark. 882, 545 S.W.2d 912 (1977). In addition, the appellant made no objection at the time the jury was instructed, but raised the issue first in his motion for a new trial. That was too late. Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983).

3. Judicial notice

We need not decide whether to strike the state’s brief as the appellant suggests, as the result would not be affected. However, for the benefit of the bar we will comment on the appellant’s argument that the state should not have asked that this court take judicial notice of facts.

The appellant testified that the reason he had gotten into the bed with his daughter was that the night was cold, and he had fallen asleep on the couch and had awakened feeling cold, and was unable to find any covers. The state, in its brief, asks this court to take judicial notice of the officially established temperatures at the place and times of the alleged incidents, citing Missouri Pacific Railroad Co. v. Magness, 206 Ark. 1081, 178 S.W.2d 493 (1944), in which we reviewed a judgment arising out of a car and train collision. In our opinion we said, speaking of the date on which the wreck occurred: “On that day, the sun set at 7:07 p.m. War Time, a fact of which we take judicial notice.” The opinion does not indicate whether the trial court had been presented with evidence upon which the taking of judicial notice could have been based.

Arkansas Rules of Evidence 201 deals with judicial notice of facts. The rule does not expressly limit the taking of judicial notice to the trial court. This court has taken judicial notice of facts which were not presented to the trial court. See City of Van Buren v. Highway Water Co., 270 Ark. 466, 605 S.W.2d 419 (1980) (date of adoption of rules by the Public Service Commission); Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979) (a circuit judge who might have offered testimony is now deceased); Renfro v. State, 264 Ark. 601, 573 S.W.2d 53 (1978) (Clay County is geographically located in the Second Judicial District).

In the case of Pascall v. Smith, 263 Ark. 428, 569 S.W.2d 89 (1978) (substitute opinion on rehearing), however, we held that it would be impermissible for this court to take judicial notice of a fact not presented to the trial court. There, the appellant had demurred to the appellee’s claim of adverse possession, saying the appellee had not offered sufficient evidence of the date he gave notice of his adverse claim. The appellee had presented evidence that he had once spoken with the appellant about his claim, and stated that, although he could not remember the date of their conversation, they had also spoken about the recent death of a local sheriff. In our original opinion in the case we took judicial notice of the Secretary of State’s records showing that the sheriff had died in February, 1966, and found in favor of the appellee. However, in the substitute opinion we declared that it was impermissible to take judicial notice of a fact not presented to the trial court.

Likewise in the case before us now we are asked to take judicial notice of a fact not presented at the trial where the appellant challenges the sufficiency of the evidence. Where a party challenges the sufficiency of the evidence to support the verdict, the opposing party may not offer additional evidence on appeal by way of judicial notice for the purpose of bolstering the sufficiency of its evidence. To hold otherwise would relieve the party of the burden of making its case at trial.

In conclusion, we note that the attorney general’s brief makes no statement that the state has complied with Arkansas Supreme Court and Court of Appeals Rule 11(f). We have, in order to save the time which would be required for rebriefing, examined the record and found no possibly meritorious objections made on behalf of the appellant which were overruled.

Affirmed.


text:
    James A. WOOTEN v. Jurvis DAVIS
    87-180
    739 S.W.2d 669
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987

      Bullock & McCormick, by: William R. Bullock, for appellant.

      Walters Law Firm, P.A., for appellee.
   David Newbern, Justice.

This is a usury case. The jury determined that the charging of interest in question was not in excess of the ten percent limit in effect at the time and thus was not usurious. The only issue presented by the appellant is whether the trial court should have granted the appellant’s motion for judgment notwithstanding the verdict. It was not error to overrule the motion, thus the judgment is affirmed.

The appellant, James A. Wooten, purchased agricultural supplies from the Davis and Sikes Feed Mill in Paris, Arkansas. The appellee, Jurvis Davis, formerly worked in the business and is the owner of the account owed by Mr. Wooten. In 1973, Mr. Wooten signed a promissory note showing an initial obligation of $9,689.03, payable in one year with interest, shown on the printed form, at ten percent per annum. A hand written insertion of “8%” also appeared on the form. Testimony established that the parties agreed to interest on the remaining obligation at ten percent as of 1979, and no issue arises with respect to whether the initial obligation was eight percent or ten percent interest. Although the note was on a form showing it to be payable to Logan County Bank, Scranton, Arkansas, it was introduced into evidence and treated by the parties as evidence of the obligation of Mr. Wooten to Mr. Davis. Also in evidence is a “Schedule of Account,” beginning with the same principal amount, introduced by Mr. Wooten, which shows when the payments of principal and interest were made and credited by Mr. Davis and his wife who helped in the business.

Although Mr. Wooten testified that he did not owe Mr. Davis anything whatever on the account, he was unable to produce any evidence of payments made other than those shown on his exhibit. He introduced the testimony of Mr. Dow Dollar, an accountant, who testified using the schedule to ascertain whether interest in excess of the constitutional maximum at that time, ten percent per annum, was charged on the account. See Ark. Const., art. 19, § 13, since amended by amend. 60. The arguments of the parties make it clear that they both accept the schedule as representative of the amounts charged and paid as principal and interest on the account, and thus we regard the facts as undisputed. Here is the “Schedule of Account” from which Mr. Dollar testified:

JURVIS DAVIS VS. JAMES A. WOOTEN

SCHEDULE OF ACCOUNT

12-16-73 Balance Payment Debit Credit $9,689.03

12-26-74 Interest to 12-26-74 775.12

02-13-75 Interest to 02-13-75 904.30

02-13-79 8,172.14 Payment

02-13-79 Interest to 02-13-79 3492.72

02-13-79 Principal credited 3000.00 6.689.03

02-13-79 Interest charged 130.00 6.819.03

02-25-81 Payment 1,703.33 1703.33 5,115.70

04- 21-81 Payment 254.20 254.20 4.861.50

01- -82 Interest charged 486.00 5.347.50

09- -82

12-01-82 Interest charged 449.55 5.797.05

01-01-83 Interest charged 48.30 5,845.35

05- 01-83 Interest charged 194.83 6.040.18

05-18-83 Payment (ck. #184) 200.00 200.00 5.840.18

08-06-83 Interest charged 121.65 5.961.83

08- 06-83 Payment 100.00 100.00 5.861.83

09- 01-83 Payment (#173) 200.00 200.00 5.661.83

09- 07-83 Interest to 9-6-83 47.20 5.709.03

10- 06-83 Interest to 10-6-83 47.25 5,756.28

05-17-84 Interest 10-6-83 to 5-6-84 335.78 6.092.06

05-17-84 Payment 150.00 150.00 5.942.06

07- 16-84 Payment (ck. #251) 75.00 75.00 5,867.06

08- 16-84 Payment 100.00 100.00 5,767.06

09- 03-84 Payment 50.00 50.00 5,717.06

09-17-84 Payment 35.00 35.00 5,682.06

05-17-84 Interest charged 568.21 6,250.27

The crux of the matter is the period 1979-1981. The schedule shows an account balance of $4,861.50 as of 4-21-81. Mr. Wooten contends, and Mr. Dollar testified, that the interest charged between 4-21-81 and the date of the last entry in the year in which the suit was filed, 5-17-84, is usurious because it is more than ten percent per annum figured on the principal of $4,861.50. We note, however, that no interest was posted on the account between 2-13-79 and January, 1982. Mr. Davis contends, and Mr. Dollar testified on cross-examination, that if the interest charged is related to the amount owed from 2-13-79 forward, then it is below ten percent per annum.

In his reply brief, Mr. Wooten contends that Mr. Davis testified that the amount, $4,861.50, was the “pay off” figure as of 4-21-81. That is not correct. Mr. Davis testified that that was the amount of the “principle [principal] balance” as of that date.

As this case came to trial, Mr. Davis amended his complaint to ask recovery of $5,331.30 rather than the $5,767.06 originally sought. The explanation given was that an error in posting for the year 1976 had been discovered. Mr. Wooten contends that this reduction does not make the interest charged any less usurious. As noted above, the amount sought is less than interest at ten percent per annum, and that is true no matter which amount is considered, if the entire duration of the obligation is considered.

The jury’s verdict and the judgment based upon it were amply supported by the evidence presented, and we find no error.


author: Tom Glaze, Justice.

text:
    Clayton HAMILTON v. JEFFREY STONE COMPANY, et al.
    87-143
    739 S.W.2d 161
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987

      McMath Law Firm, by: Eileen W. Harrison, for petitioner.

      Michael E. Ryburn, for respondents.
   Tom Glaze, Justice.

This is a workers’ compensation case that has been appealed to the court of appeals twice. In the first appeal, appellant argued two points: (1) the statutes of limitations pertaining to silicosis, Ark. Stat. Ann. §§ 81-1314(a)(7) and -1318(a)(2) (Repl. 1976), were unconstitutional because they violated the equal protection clause of the fourteenth amendment to the United States Constitution; but, if constitutional, (2) the statutes should be interpreted to run from the date of discovery or the time at which the claimant knows or should reasonably be expected to know of the injury. The court of appeals, citing Quality Excelsior Coal Co. v. Smith, 233 Ark. 67, 342 S.W.2d 480 (1961), held against appellant on his second point, but it remanded the case, specifically directing the Commission to consider and decide the constitutional arguments regarding the silicosis statutes of limitations. See Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982).

On remand, the Commission upheld the constitutionality of the silicosis limitations statutes, Ark. Stat. Ann. §§ 18-1314 (a)(7) and -1318(a)(2), but in appellant’s second appeal, the court of appeals again refused to reach the constitutional questions although those issues were argued and briefed before the Commission and the court of appeals. Instead, the court of appeals said it need not reach the constitutional issues because even if it held the silicosis statutes of limitations unconstitutional, the appellant was barred under § 81-1318(a)(1), the remaining limitation statute that pertains to what the court labels “general work-related injuries.” That statute has been construed to run from the time the employee knows or should reasonably be expected to be aware of the extent or nature of his injury. See T.J. Moss Tie & Timber Co. v. Martin, 220 Ark. 265, 247 S.W.2d 198 (1952) and Woodard v. ITT Higbie Manufacturing Co., 271 Ark. 498, 609 S.W.2d 115 (Ark. App. 1980). This point was the very contention appellant made and the court of appeals rejected in the first appeal. Hamilton, 6 Ark. App. at 336. We granted appellant’s petition for review from the second (unpublished) decision, pursuant to Rule 29. We reverse and remand.

The court of appeals clearly was obliged to decide the constitutional issues. It previously remanded appellant’s case, rejecting his contention that the silicosis statutes of limitations should run from the date of discovery or when he reasonably should have known that he suffered from silicosis. As a consequence, the Commission decided, per the court’s directions on remand, the constitutional issues concerning the silicosis statutes of limitations. Because the case was remanded for the constitutional issues, appellant was in no position to offer evidence concerning when he should have known he suffered from silicosis, nor did the Commission consider that factual question.

Nonetheless, the court of appeals, in appellant’s second appeal, made its own finding that the evidence showed appellant reasonably should have known of his silicosis condition. To support that finding, it related the facts that (1) in 1969, he was forced to stop working for Jeffrey Stone Company because of lung trouble, which was diagnosed as tuberculosis and (2) in 1977, while working as a security guard, his lung condition worsened, forcing him to quit that job because of breathing difficulties. Based upon that factual determination, the court held appellant would not be eligible for benefits under the longer or more liberally construed limitation statute relating to “general work-related injuries” even if it ruled the silicosis statutes of limitations unconstitutional.

The court of appeals had no authority to make the factual determination it did so as to avoid the constitutional issues raised by appellant. But, aside from that point, the record reflects those constitutional issues had been remanded to the Commission, decided by it and were clearly ripe for resolution by the court of appeals in the second appeal. Under Ark. Sup. Ct. R. 29(l)(c), cases involving the interpretation and constitutionality of workers’ compensation statutes are appealable to the court of appeals. Because jurisdiction to decide such issues is with the court of appeals, we remand this case for it to decide the constitutionality of §§ 81-1318(a)(2) and -1314(a)(7).

       The court’s opinion also related appellant’s doctor advised him to change jobs to get away from the exposure to silica dust. The Commission, instead, found his doctor advised him not to return to the same type work.


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

text:
    LEVI STRAUSS & COMPANY v. CROCKETT MOTOR SALES, INC.
    87-88
    739 S.W.2d 157
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987

      Hollingsworth & Heller, P.A., by: Raymond Easterwood, for appellant.

      Walker & Poff, by: Frank A. Poff, Jr., for appellee.
   Tom Glaze, Justice.

This conflict of laws case involves a garnishment proceeding against appellant, Levi Strauss & Co., on wages earned by one of its employees, Gloria Penn, who now lives in Tennessee. In this proceeding, appellee, Crockett Motor Sales, Inc., seeks to garnish earnings earned by Penn while working in a Levi Strauss plant located in Tennessee. Levi Strauss, a foreign corporation registered to do business in Arkansas, answered Crockett Motor’s writ of garnishment, stating that Strauss’s Little Rock plant, where Penn previously worked, had closed, and she now worked in its facility at Powell, Tennessee. Crockett Motor controverted Levi Strauss’s answer, alleging Strauss has an agent for service of process in Arkansas, and is required to comply with the writ of garnishment. After both parties argued whether the trial court had jurisdiction to issue a writ of garnishment, the trial court held that it did and ordered Strauss to comply with the writ. There being no other issues raised concerning the garnishment proceeding, Strauss brings this appeal challenging the court’s jurisdiction.

Crockett Motor bases its argument that the trial court has jurisdiction upon this court’s holding in Stone v. Drake, 79 Ark. 384, 96 S.W.2d 197 (1906). There, Stone garnished the Texas & Pacific Railway Company for a debt due (wages owed) its employee Drake, who worked and resided in Texas. Stone previously had obtained an Arkansas default judgment against Drake and brought the garnishment action against the railway company, a Texas corporation, because it had an agent and had tracks and trains located in the state. This court sustained Stone’s garnishment action. The court, quoting from Harvey v. Great Northern Railway Co., 50 Minn. 405, 52 N.W. 905 (1892), set out the rule which has been recognized by this state for the past eighty years. The court said:

While, by fiction of law, a debt, like other personal property, is for most purposes, as, for example, transmission and succession, deemed attached to the person of the owner, so as to have its situs at his domicil, yet this fiction yields to laws for attaching the property of non-residents, because such laws necessarily assume that the property has a situs distinct from the owner’s domicil. For such purpose a debt has situs wherever the debtor or his property can be found. Wherever the creditor might maintain a suit to recover the debt, there it may be attached as his property, provided, of course, the laws of the forum authorize it. (Emphasis supplied.)

See also London & Lancashire Insurance Co. v. Payne, 180 Ark. 638, 22 S.W.2d 165 (1929); Person v. Williams-Echols Dry Goods Co., 113 Ark. 467, 169 S.W.223 (1914), and Kansas City, Pittsburg & Gulf Railway Co. v. Parker, 69 Ark. 401, 63 S.W. 996 (1901). In following the foregoing rule, the Stone court concluded that because the non-resident Drake, by posting a bond, could maintain an action in Arkansas against the Texas & Pacific Railway Company (see § 959, Kirby’s Digest, now Ark. Stat. Ann. § 27-2301 (Repl. 1979)) (non-resident plaintiff required to give bond for costs before filing action) and because the state authorized Stone to maintain a garnishment action to recover his debt, Stone’s garnishment against the Texas & Pacific Railway Company was proper.

The law in Stone basically remains intact and this court has adhered to the rule that power over the person of the garnishee confers jurisdiction on the courts of the state where the writ issues. London & Lancashire Insurance Co. v. Payne, supra. Stated in still other terms, the court in Person v. Williams-Echols Dry Goods Co., supra, held that the situs of a debt, for purposes of garnishment, is not only at the domicile of the debtor, but in any state in which the garnishee may be found, provided the law of that state permits the debtor to be garnished, and provided the court acquires jurisdiction over the garnishee through his voluntary appearance or actual service of process upon him within the state.

The instant case, on its facts, has little to distinguish it from Stone. Here, Penn lived in Arkansas when she purchased an automobile from Crockett Motors and, upon defaulting on her contract, Crockett Motors obtained a judgment against her. While she still lived and worked for Levi Strauss in Arkansas, Crockett Motors garnished her wages earned in this state on two separate occasions. Levi Strauss’s Little Rock plant had closed and Penn had moved to Tennessee when this third garnishment proceeding was commenced. Thus, as was the situation in Stone, the creditor is located in Arkansas, the non-resident debtor wage earner lives in another state, but the wage earner’s employer is subject to suit in Arkansas, since it registered to do business and does business in this state. Accordingly, if we follow the law established in Stone and its progeny, we clearly must hold the trial court had jurisdiction of the garnishment action against Levi Strauss.

Nonetheless, Levi Strauss urges us to follow Tennessee law which is set out in Williams v. Williams, 621 S.W.2d 567 (Tenn. Ct. App. 1981). There, the court held the Tennessee garnishment action must fail because a Texas resident could not obtain proper jurisdiction over his Texas employer in Tennessee for wages earned and payable in Texas, concluding the mere fact that the employer was a foreign corporation authorized to do business in Tennessee did not give Tennessee jurisdiction. In view of Arkansas’ long adherence to the rule set out in Stone, we see no reason to depart from it.

We also note Levi Strauss’s argument that Arkansas’s long arm statute, more particularly Ark. Stat. Ann. § 27-2502 (Repl. 1979), has limited the state’s exercise of personal jurisdiction over only those persons whose conduct conforms with those acts specified in § 27-2502(C). Of course, as is duly provided in § 27-2502(F), other bases of jurisdiction were unaffected by the enactment of § 27-2502 and the state’s courts may exercise jurisdiction on any other basis authorized by law.

Even so, we do take this opportunity to view the situs of debt rule adopted by our case law in light of the Supreme Court holding in Shaffer v. Heitner, 433 U.S. 186 (1977). The Court in Shaffer held that quasi in rem jurisdiction as well as personal jurisdiction over an absent defendant depend on the defendant’s “contacts” with the forum state so as to meet “traditional notions of fair play and substantial justice,” the formula stated in International Shoe Co. v. Washington, 326 U.S. 310 (1945). See R. Leflar, American Conflicts Law § 24A (3d ed. 1977). (Professor Leflar, in analyzing the effects of Shaffer v. Heitner, supra, concluded that Harris v. Balk, 198 U.S. 215 (1905), is no longer good law and that the garnishment of tangible property based on nothing more than service upon the obligor wherever he is found now violates the due process clause.)

In considering the situation here in view of the Shaffer holding, we have no difficulty in deciding that Penn, a non-resident defendant, had sufficient contacts with Arkansas and the litigation here to sustain the court’s jurisdiction in this matter. We would first note that Crockett Motor did not initiate the garnishment action as a means by which to adjudicate a claim against Penn; it had already obtained a judgment against Penn at the time she lived and worked in Arkansas. The only changes having taken place since that judgment (and two garnishments after it was entered) were the closing of Levi Strauss’s plant in Little Rock and the moving of Penn to Tennessee. Otherwise, Penn still works for Levi Strauss, albeit in Powell, Tennessee, and Strauss continues to do business in Arkansas — a foreign corporation which clearly is subject to suit in this state. Crockett Motors seeks only to satisfy its judgment by reaching Penn’s earnings which are under the control of Levi Strauss. Unquestionably, Penn was present in Arkansas and had sufficient contacts for Crockett to obtain the judgment against her, and due process does not require a renewal of each of those contacts with this state in order that Crockett can collect on that judgment. See Oregon ex rel. Department of Revenue v. Control Data Corp., 300 Or. 471, 713 P.2d 30 (1985). Suffice it to say, Penn’s contacts, past and present, with this state are sufficient for us to sustain the trial court’s exercise of jurisdiction in the garnishment proceeding below. Accordingly, we affirm.

Hickman, J., concurs. Purtle, J., dissents.

Darrell Hickman, Justice,

concurring. I agree that under the peculiar facts of this case, the trial court’s order should be affirmed.

I am not certain I would join in such a decision if the debtor and creditor were not both residents of Arkansas at the time of the judgment. Since I don’t have to make that decision, I won’t at this time. I also have the same reservations regarding the issue of a convenient forum.

John I. Purtle, Justice,

dissenting. I am pleased that the majority has adopted the practical view that it is not necessary that an order or judgment “dismiss the parties from court, discharge them from the action, or conclude their rights to the subject matter in controversy” to be appealable. See Tapp v. Fowler, 288 Ark. 70, 702 S.W.2d 17 (1986); Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984); and ARAP Rule 2. The order appealed from in this case was an order by the trial court ordering the appellant to answer certain interrogatories. However, it is obvious that the trial court would have eventually ordered the appellant to pay into the court the attachable part of Ms. Penn’s wages due under the garnishment proceedings.

I am not pleased that the majority has overreached the long arm of Arkansas law. Even though the Arkansas court had jurisdiction to issue this writ of garnishment, the court would not have the authority to compel the appellant to pay funds into the court earned by a non-resident judgment debtor in another state. The employee’s wages at issue were not for services performed in Arkansas nor were they a result of her employer doing business in Arkansas.

The majority opinion essentially holds that a writ of garnishment, based upon an Arkansas judgment in favor of an Arkansas creditor, will reach the wages of a non-resident earned in another state, if the employer is doing business in both states. The effect of the holding gives the circuit courts of Arkansas jurisdiction over property located in Tennessee. I have no doubt that if the situation were reversed we would have no hesitancy in reaching the opposite result from that stated by the majority.

The United States Supreme Court in Shaffer v. Heitner, 433 U.S. 186 (1977), held that in rem and quasi in rem jurisdiction (as well as personal jurisdiction) over an absent defendant must be determined in light of the test found in International Shoe v. Washington, 326 U.S. 310 (1945). Thus, jurisdiction over the property of an absent defendant depends on the defendant’s “contacts” with the forum state, and the exercise of such jurisdiction must not offend “traditional notions of fair play and substantial justice.”

I understand Dr. Leflar and Shaffer v. Heitner, 433 U.S. 186 (1977) to require the opposite of the holding accomplished by the majority. Dr. Leflar, in American Conflicts of Law § 24 (3d ed. 1977), speaking about Shaffer states:

[Shaffer] imposes far-reaching new due process of law limitations upon the exercise of judicial jurisdiction in rem and quasi in rem. It subjects this area of jurisdiction, or at least part of it that has permitted attachment or garnishment of choses in action at the place where an absent defendant’s debtor is found, to the same constitutional requirement of “fair play and substantial justice” as prescribed in International Shoe Co. v. Washington [footnote omitted] for in personam jurisdiction.

Clearly Shaffer made International Shoe applicable to in rem actions as well as in personam. As Dr. Leflar stated, it had far reaching effects. I understand it to overrule the so-called “situs of the debt” theory which Stone v. Drake, 79 Ark. 384, 96 S.W. 197 (1906) and Harris v. Balk, 198 U.S. 215 (1905) followed. Under this theory, the situs of the debt for purposes of garnishment, is not only at the domicile of the judgment debtor, but in any state in which a garnishee may be found.

The present case is identical to the situation in Harris v. Balk, supra, which is no longer good law. In Harris v. Balk, Epstein, a resident of Maryland, had a claim against Balk, a resident of North Carolina. Harris, another North Carolina resident, owed money to Balk. When Harris happened to visit Maryland, Epstein garnished his debt to Balk. Harris did not contest the debt to Balk and paid it to Epstein’s North Carolina attorney. When Balk later sued Harris in North Carolina, the Supreme Court held that the Full Faith and Credit Clause, U.S. Const, art. IV, § 1, required that Harris’ payment to Epstein be treated as a discharge of his debt to Balk. The Court reasoned that the location of the debt traveled with the debtor.

In Shaffer, however, the Supreme Court overruled Harris v. Balk. The Court held that in rem jurisdiction must be subjected to the test found in International Shoe. In rejecting the “situs of the debt” theory, the Court stated:

We are left, then, to consider the significance of the long history of jurisdiction based solely on the presence of property in a State. . . . The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state court jurisdiction that is fundamentally unfair to the defendants.

Traditional notions of fair play and substantial justice do not seem to me to have been met by the majority opinion. The appellant has no property or wages in Arkansas which belong to the employee. The employee had no substantial contacts with Arkansas at the time of this garnishment proceeding. Neither she nor her property occupied an Arkansas situs.

My chief fear is not what this decision will do to the law; it is the effect it will have on employment. After all, the Arkansas law is only what we say it is on Monday mornings. But the disaster to employees, who become unemployed by plant reductions and closings, is obvious. Large employers are apt to decide to terminate an employee rather than transfer to another location. Another danger of this decision is that employers will be reluctant to hire new employees who have outstanding judgments against them. Therefore, this decision is harmful to both employers and employees.

Both sides rely on Stone v. Drake, 79 Ark. 384, 96 S.W.2d 197 (1906), and Williams v. Williams, 621 S.W.2d 657 (Tenn. Ct. App. 1981). The majority states this is a conflict of laws case and then proceeds to decide the case on due process of law. I believe the Tennessee case is the more reasoned resolution of this issue.

The appellant complied with the Arkansas law relating to doing business and appointing an agent for process. However, by doing so it did not consent to jurisdiction over obligations arising out of employment in Tennessee. It has no obligation to the appellee arising out of its Arkansas activities. It should be commended and not penalized for its policy of relocation of displaced employees.

I would reverse.

       In the alternative, Levi Strauss argues Arkansas was an inconvenient forum, but because that issue was never presented to or ruled upon by the trial court, we do not reach it on appeal.

       The Tennessee court in Williams referred to this rule as the situs of debt approach, which was a theory the court said was not followed in that state.


author: Per Curiam.

text:
    IN THE MATTER OF THE ARKANSAS BAR ASSOCIATION, PETITION TO AUTHORIZE A PROGRAM GOVERNING INTEREST ON LAWYERS’ TRUST ACCOUNTS
    84-90
    738 S.W.2d 803
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987
   Per Curiam.

On September 17,1984, we granted a petition by the Arkansas Bar Association requesting that we permit establishment of a program for collecting interest on monies deposited in lawyers’ trust accounts and for use of the interest earned for certain purposes having to do with furthering legal education and the sound administration of justice in Arkansas. In the Matter of the Arkansas Bar Association Petition to Authorize a Program Governing Interest on Lawyers’ Trust Accounts, 283 Ark. 252, 675 S.W.2d 355 (1984).

Our opinion contained, in part, this language:

6. The qualified recipient of interest earnings on lawyers’ trust accounts should be a newly created Arkansas nonprofit corporation to be governed by a Board of Directors comprised of the Chief Justice and two Associate Justices, five members of the lay public appointed by the Governor of Arkansas,2 three lawyers appointed by the President of the Arkansas Bar Association, and the President of the Arkansas Bar Association; twelve (12) in all. With the exception of the Chief Justice, the two Associate Justices and the President of the Arkansas Bar Association, terms of the directors should be on a staggered basis, [footnote omitted]

The provision for participation by the Chief Justice and two Associate Justices was to insure implementation of the IOLTA Program in a manner consistent with the desires of the Court. It has now been over three years since the original per curiam order authorizing the creation of the IOLTA Program. The Board has reached its full complement, an executive director has been employed, and funds are being received and allocated in an appropriate fashion.

For these reasons, we conclude it is no longer necessary to maintain such substantial participation by the Justices as members of the Board of Directors. However, we do wish to continue our participation in the management of this effort.

Accordingly, our opinion of September 17, 1984, is hereby modified by replacing the language quoted above with the following:

6. The qualified recipient of interest earnings on lawyers’ trust accounts should be a newly created Arkansas nonprofit corporation to be governed by a Board of Directors comprised of the Chief Justice or his designated agent, five members of the lay public appointed by the Governor of Arkansas,2 five lawyers appointed by the President of the Arkansas Bar Association, and the President of the Arkansas Bar Association; twelve (12) in all. With the exception of the Chief Justice or his designated agent, and the President of the Arkansas Bar Association, terms of the directors should be on a staggered basis, [footnote omitted]

The Board of Directors of the Arkansas IOLTA Foundation should amend their Bylaws and Articles of Incorporation to reflect these changes.


text:
    Lawrence BENSON v. STATE of Arkansas
    CR 87-3
    739 S.W.2d 163
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner Lawrence Benson was convicted of aggravated robbery and sentenced to twenty years imprisonment. He appealed the conviction to the Arkansas Court of Appeals. The court of appeals found our opinion in Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986), to be controlling. Trotter was the petitioner’s accomplice. The petitioner and Trotter entered a store, and Trotter shot the owner. He shot again but the gun misfired, and Trotter and the petitioner fled. Both were convicted of aggravated robbery. We found in Trotter that there was insufficient evidence of aggravated robbery since there was no evidence that Trotter intended to rob the store. We reduced the charge to first degree battery, and the sentence was changed from life to twenty years imprisonment. Trotter v. State, supra. When the petitioner appealed, the court of appeals followed the Trotter opinion and reduced the charge to first degree battery, but retained the sentence of twenty years since that was within the allowable limits of punishment for first degree battery, a class B felony. The petitioner now seeks permission to proceed in the circuit court for an evidentiary hearing pursuant to Criminal Procedure Rule 37.

The petitioner alleges that the court of appeals erred in: (1) finding him guilty of first degree battery since he had not been charged with or tried by a jury for that crime; (2) finding first degree battery since the elements are different than in aggravated robbery; and (3) not reducing the petitioner’s sentence since the jury clearly intended that he receive a lesser sentence than his accomplice’s. Each of these points was raised in the petitioner’s petition for rehearing, which the court of appeals denied, and in his petition for review, which we denied. Therefore, the points were settled on appeal. Rule 37 does not provide an opportunity to reargue points which have already been determined on appeal. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981); Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). Moreover, even if these issues had not been litigated on appeal, they would not be sufficient, if meritorious, to void the judgment. Therefore, Rule 37 would not afford the petitioner postconviction relief. See Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied, 452 U.S. 973 (1981).

Petition denied.


author: Per curiam.

text:
    Troy L. BURNS v. A.L. LOCKHART, et al.
    738 S.W.2d 423
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987

      Appellant, pro se.
    No response.
   Per curiam.

Petitioner has filed handwritten petitions to be permitted to proceed in forma pauperis and for a writ of habeas corpus. The petition to proceed as a pauper fails to comply with Rule 28 of the Rules of the Supreme Court and the Court of Appeals. The petition for a writ of habeas corpus fails to state grounds which make a substantial showing that petitioner is entitled to relief. The petitions are, therefore, denied. See Glick v. Lockhart, 288 Ark. 417, 706, S.W.2d 178 (1986) and Hayes v. Lockhart, 288 Ark. 419, 706 S.W.2d 179 (1986).

Purtle, J., dissents.


author: Per Curiam. John I. Purtle, Justice,

text:
    Raymond COBLE v. A.L. LOCKHART, et al. David Hugh WILLIAMS v. A.L. LOCKHART, et al.
    87-182 & 87-218
    739 S.W.2d 164
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987

      Appellant, pro se.

      No response.
   Per Curiam.

Raymond Coble and David Hugh Williams have filed handwritten motions asking only to proceed in forma pauperis, for what purpose is not stated. We have held that handwritten briefs will be accepted where the petitioner shows that he has no access to a typewriter and makes a substantial showing that his suit has merit. See Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986) and Hayes v. Lockhart, 288 Ark. 419, 706 S.W.2d 179 (1986). While movants have made no attempt to show that there is merit to their unstated claims, we do not deny the motions on that basis, but because the motions fail to comply with Rule 28 of the Rules of the Supreme Court and the Court of Appeals.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The appellant has filed a handwritten motion to proceed in forma pauperis and by handwritten pleadings and argument. The motion, which is subscribed and sworn to, establishes that the movant is in the Arkansas Department of Correction and that he has no funds in the institutional account assigned to him or anywhere else. Without question he is a pauper and almost as obvious is the fact that he does not have access to a secretary or a typewriter. It is sheer folly to deny petitioner’s request because of his failure to comply with Rule 28, the pauper’s oath, since everyone knows he is a pauper.

We had the same question before us in the case of Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986), where we granted the appellant thirty days to submit a motion seeking permission to file handwritten briefs. On the same day we issued an opinion denying a similar petition. In the other case, Hayes v. Lockhart, 288 Ark. 419, 706 S.W.2d 179 (1986), this Court denied Hayes’ motion because it was civil in nature and he had no absolute right to counsel. However, in Hayes we stated: “If the lack of a typewriter is hindering appellant’s access to this Court, he may seek permission to proceed pro se with a handwritten brief.” We have recognized the right of an inmate to represent himself. Such right has no value if the inmate is in fact precluded from proceeding in the courts.

We have made provision for acceptance of handprinted briefs in some cases. Supreme Court Rule 11(h) at one point states: “The Clerk of this Court shall furnish the appellant with a copy of his counsel’s brief, and advise the appellant that he has thirty days within which to raise any points that he chooses and that this may be done in typewritten or handprinted form and accompanied by his affidavit that he has not received any [paid] assistance from any inmate of the Department of Correction or of any other place of incarceration in the preparation of this response.” The last quoted sentence relates to situations where the inmate’s attorney has decided there is no merit to the appeal. However, there is no logical reason why it should not apply to the present situation.

Regardless of the fact that we seem to weave back and forth on the matter of appointment of counsel and acceptance of handprinted briefs, we cannot deny the fact that every individual is entitled to represent himself. These inmates are individuals and they have a Constitutional right to represent themselves in this Court. They cannot proceed if money is required or if their briefs must be typewritten. Therefore, we should grant the appellant the right to file a handwritten motion and brief in support of his claim for relief.

Procedurally, the appellant should be allowed to proceed in forma pauperis. He should be allowed to file a handwritten petition wherein he states the reasons he believes he is entitled to be heard. If merit is shown by the petition, the appellant should be allowed to proceed in this Court on handwritten briefs.

I also dissent in the motion of Troy L. Burns and Raymond Coble for the reasons stated above.


text:
    James Joseph STANDLEY, Jr. v. STATE of Arkansas
    738 S.W.2d 423
    Supreme Court of Arkansas
    Opinion delivered November 9, 1987

      Billy J. Allred, for appellant.
    No response.
   Per Curiam.

Appellant, James Joseph Standley, Jr., by his attorney, has filed for a rule on the clerk. His attorney, Billy J. Allred, admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr.. Chief Justice.

text:
    Edward L. HOLLAND v. Nancy WILLIS, as Mother and Next Friend of Tina Raynee ADAMS, a Minor, and Melissa Sharron Adams PRUITT
    87-186
    739 S.W.2d 529
    Supreme Court of Arkansas
    Opinion delivered November 16, 1987

      Hixson, Clevland & Rush, by: David L. Rush, for appellant.

      Jack Skinner, for appellees.
   Jack Holt, Jr.. Chief Justice.

The appellant, Edward L. Holland, as executor of the estate of William Sherman Adams (Testator), appeals from an order determining that the appellees, the Testator’s grandchildren, are the pretermitted heirs of the deceased. This appeal questions the constitutionality of the Arkansas Pretermitted Heir Statute, codified at Ark. Stat. Ann. § 60-507(b) (Repl. 1971). We find the statute is constitutional and affirm.

The Testator executed his last will and testament on May 23, 1984, leaving his entire estate to his nephew, Edward L. Holland and naming him executor. He died on April 12, 1986. Two children were born to him, Judith Rice and William Edward Adams. His son, William Edward, precedeased him leaving the Testator two grandchildren, Tina Raynee Adams and Melissa Sharron Adams Pruitt. The Testator’s will specifically mentioned Judy Rice and disinherited her; however, it made no mention of his deceased son or his grandchildren.

Upon admission of the will to probate, the grandchildren, through their mother, petitioned for a one-fourth share of the estate as pretermitted heirs. The executor filed a motion for summary judgment, arguing Ark. Stat. Ann. § 60-507(b) was unconstitutional as violating the due process, equal protection and privileges and immunities clauses of the Arkansas and United States Constitutions. The trial court denied the motion finding the statute constitutional. A hearing on the petition followed on February 26, 1987, and after hearing testimony presented by both parties, the trial court determined the grandchildren were pretermitted heirs and that Ark. Stat. Ann. § 60-507(b) (Repl. 1971) was “constitutionally proper.” An order was entered accordingly on March 18, 1987, from which the executor brings this appeal.

When William Sherman Adams’ will entered probate, the grandchildren petitioned to take against the will claiming to be pretermitted heirs. They based their claim on the fact that neither they nor their father, William Edward Adams, were mentioned or provided for in the will. This court has consistently held that if the testator does not mention the children of a deceased child, the grandchildren are pretermitted. King v. King, 273 Ark. 55, 616 S.W.2d 483 (1981); Armstrong v. Butler, 262 Ark. 31, 553 S.W.2d 453 (1977); Gray v. Parks, 94 Ark. 39, 125 S.W. 1023 (1910).

Ark. Stat. Ann. § 60-507(b) (Repl. 1971) defines pretermitted heir:

If at the time of the execution of a will there be a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to such child or issue, and such child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.

According to the statute and the case law, the grandchildren are pretermitted because neither they nor their father, who died before the will was executed, were mentioned or provided for in the will. As pretermitted heirs, they are entitled to a share in the estate.

The executor argues the statute is unconstitutional because ir violates the due process, equal protection, and privileges and immunities clauses of the Arkansas and United States Constitutions. In doing so, he claims the statute creates an irrebuttable presumption, because extrinsic evidence cannot be introduced to show the testator’s intent: Armstrong v. Butler, supra. We agree that the use of the word “deemed”, coupled with the other language in the statute, creates such a presumption. However, we hasten to add it does not automatically cause the statute to fail.

In Armstrong v. Butler, supra at 39, this court stated:

The intention of a testator is to be gathered from the four corners of the instrument itself, considering the language used and giving meaning to all its provisions, if possible to do so. The intention of the testator as expressed in the language of his will prevails if consistent with the rules of law .... Oral testimony is admissible for the purpose of showing the meaning of words used when they are ambiguous, but not to show what the testator intended, as distinguished from his express words. It is true that if there is uncertainty about the intention of the testator when the words of the will are considered in their ordinary sense, the court must read language in the light of circumstances existing when the will was written including relationships with his family and the beneficiaries named, the motives which may be reasonably supposed to influence him and other such matters. Extrinsic evidence was not admissible to show that the testatrix intended to disinherit a pretermitted heir. (Citations omitted.)

See also Hare v. First Security Bank, 261 Ark. 79, 546 S.W.2d 427 (1977).

There is a presumption of constitutionality attendant to every legislative enactment, and all doubt concerning it must be resolved in favor of constitutionality. Stone v. State, 254 Ark. 1011, 498 S.W.2d 634 (1973). If it is possible for the courts to so construe an act that it will meet the test of constitutionality, they not only may, but should and will, do so. Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972). The party challenging a statute has the burden of proving it unconstitutional. Citizens Bank of Batesville v. Estate of Pettyjohn, 282 Ark. 222, 667 S.W.2d 657 (1984).

DUE PROCESS

The executor claims the statute violates due process because the executor has the duty to carry out the provisions of the will and the statute prevents him from doing that. Also, the statute deprives the beneficiary of his bequest under the will.

In determining whether a statute violates due process, we must determine if it has a rational basis and is reasonably related to the statutory purpose. Dicks v. Naff, 255 Ark. 357, 500 S.W.2d 350 (1973). The Arkansas Pretermitted Heir Statute meets these requirements. There are several state interests advanced by the statute. This court has on several occasions stated that “the purpose of this statute is not to interfere with a person’s right to dispose of his property according to his own will, but to avoid the inadvertent or unintentional omission of children (or issue of a deceased child) unless an intent to disinherit is expressed in the will. Thus, where the testator fails to mention children or provide for them as members of a class, it will be presumed that the omission was unintentional, no contrary intent appearing in the will itself.” Robinson v. Mays, 271 Ark. 818, 821, 610 S.W.2d 885 (1981); Culp v. Culp, 206 Ark. 875, 178 S.W.2d 52 (1944); Yeates v. Yeates, 179 Ark. 543, 16 S.W.2d 996 (1929). The statute does not require the testator to provide for his heirs, only to mention them. Culp v. Culp, supra. The child does not have to be specifically named, but can be included as a member of the class. Yeates v. Yeates, supra.

EQUAL PROTECTION

There is no merit to the executor’s argument that the statute violates the equal protection clause because it does not rationally relate to any legitimate state purpose. The estate claims there are no individual interests to support the classification nor are there any government interests to support the classification.

In determining whether a classification denies the equal protection of the laws, we must determine if it has a rational basis and is reasonably related to the purpose of the statute. Rawls v. State, 260 Ark. 430, 541 S.W.2d 298 (1976). The equal protection clause does not require identity of treatment. Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984). A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). To determine whether a law is violative of equal protection, we look at (1) the character of the classification, (2) the individual interests asserted in support of the classification and (3) the governmental interests asserted in support of the classification. Estate of Epperson, supra; Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974). We do not have to determine the actual basis for the legislation, but merely find any rational basis. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Obviously, the classification passes muster because it rationally relates to a legitimate state purpose, the same as set out under the due process portion of this opinion.

PRIVILEGES AND IMMUNITIES

Lastly, the executor claims the statute violates the privileges and immunities clause because it grants a privilege that other citizens do not enjoy — placing the grandchildren in a position superior to the beneficiary of the will. In addition, he argues this privilege is not rationally related to any legitimate state purpose. We use the rational basis test to determine whether a statute violates the privileges and immunities clause. Streight v. Ragland, supra. As stated under the equal protection discussion, the statute is rationally related to a legitimate state purpose.

The statute is constitutional.

Affirmed.


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

text:
    Joyce COPE v. STATE of Arkansas
    CR 87-104
    739 S.W.2d 533
    Supreme Court of Arkansas
    Opinion delivered November 16, 1987

      Sloan & Sloan, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Joyce Cope was convicted of raping her two daughters. One was 6 and the other was 12 years old. Mrs. Cope was sentenced to 40 years imprisonment on each count, to be served consecutively. On appeal she claims she did not voluntarily confess, the court erred in permitting a videotape of her daughters’ testimony to be used and there was insufficient evidence of the two rapes. We find no error and affirm the judgment.

First, we consider the questions raised regarding her confession. Her main argument is that she did not knowingly and intelligently waive her rights. The rights form which Cope signed is identical to that in Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1983). It does not say “I expressly waive my rights. . .” After enumerating the Miranda rights, the form simply states:

Do you understand that you may waive the right to advice of counsel and your right to remain silent, and you may answer questions or make a statement without consulting a lawyer if you so desire?

Fleming criticized the use of such a form and we stated:

We strongly feel that a form used to support the state’s contention that an accused knew and waived his rights should contain express language to that effect.

Regardless of our statement in Fleming, the law is clear that the failure to obtain an explicit waiver of rights does not necessarily preclude a voluntary confession.

In North Carolina v. Butler, 441 U.S. 370 (1979), the court said:

Ten of the eleven United States Courts of Appeals and the courts of at least 17 States have held that an explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or the right to counsel guaranteed by the Miranda case. By creating an inflexible rule that no implicit waiver can ever suffice, the North Carolina Supreme Court has gone beyond the requirements of federal organic law. It follows that its judgment cannot stand, since a state court can neither add to nor subtract from the mandates of the United States Constitution.

Our recent decision in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), makes the same holding. In this case the trial judge, after hearing considerable testimony by the officer and the appellant, found the confession voluntary, and we will not overturn that decision because of the rights form used.

The appellant makes two other arguments about her confession. First, she says the judge did not properly consider her vulnerability in determining her confession was admissible. See State v. Graham, 277 Ark. 465, 642 S.W.2d 880 (1982). Cope argued she was vulnerable because she had never been exposed to the criminal justice system, had spent her first night in jail and faced “intense interrogation.” The record does not support Cope’s argument. She was 37 years old when she was arrested. She had completed the eighth grade and had been taking classes to obtain her GED. She was read her rights twice: the day she was arrested and the following day before she was given a polygraph test. Officer Beall stated the appellant indicated she understood what her rights were. Cope made a statement to the officer after she had submitted to the polygraph examination. There is no evidence of intense interrogation. She was only with the officer an hour and ten minutes before she confessed to raping her daughters. She admitted she was not threatened or abused. It was a routine interrogation.

Second, it is argued her confession was coerced because she did not “knowingly, voluntarily, and intelligently” confess. During the Denno hearing, Cope stated, after the polygraph test, she did not know what it meant to waive her rights. She said Officer Beall told her that Ray (her husband) “wasn’t going to take all the blame for what had been going on.” See Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987). (Ray Cope’s rape convictions were affirmed on appeal.) She also stated that the officer told her it would help her if she told him what had happened. But she admitted Officer Beall did not tell her what to say. He did not promise to do anything for her if she gave him a statement, nor did he tell her he would help her with the charges. Furthermore, he did not tell her of what the girls had accused her. (Appellant’s confession, however, corroborated the girls’ testimony of how they were sexually abused.) Appellant stated she made the statement to get the officer “to back off and, you know, leave me alone. I had had enough.” There was no testimony that the appellant had been physically abused or threatened. See Colorado v. Connelly, 107 S.Ct. 515 (1986); Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987).

The trial judge was undoubtedly influenced in his decision by the demeanor of the witnesses. It was his responsibility to determine which witness was credible. Duncan v. State, supra. We cannot say the trial judge was clearly wrong in finding that appellant understood her rights and knowingly and intelligently waived them in making her voluntary statement. Considering the totality of the circumstances, we find the confession voluntary. Duncan v. State, supra.

Appellant argues it was error for the trial judge to allow the state to use videotapes of the two daughters’ testimony rather than requiring them to be present at trial. If “good cause” is shown, such a procedure is permissible. Ark. Stat. Ann. § 43-2036 (Supp. 1985).

A social worker, who had worked with the children, testified that it would be in the best interest of the children, who had been subjected to considerable abuse, to allow them to testify before a small group rather than at trial. She testified that if the girls thought there were several people present who knew what had happened to them, it would “embarrass them and upset them.” Significantly, she testified that when the girls talked about being abused, their therapy suffered, their attitude and behavior regressed, and their sexual acting out increased. The girls were placed in separate foster homes to prevent them from acting out sexually with each other. The social worker thought it would be less harmful for the girls to testify before as few people as possible.

In McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986), we held the trial judge has considerable discretion in determining if a video taped deposition can be used. We said:

Many factors can and should be considered in determining what is good cause. The circumstances surrounding the offense, the child’s age, and the potential harm to the child would be a few of these factors.

The trial judge made a finding of good cause, and, in view of the girls’ ages, the sexual abuse they had endured, and the social worker’s testimony, we cannot say he abused his discretion.

Finally, the appellant argues that the evidence was not sufficient to support the convictions for the two rapes. Both daughters explained in detail how their mother penetrated their sexual organs with her fingers and foreign objects. While there were inconsistencies in their testimony, these were for the jury to resolve. Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983).

The appellant also contends that the evidence was insufficient to support the conviction of the rape of her younger daughter, because the daughter’s testimony was not corroborated. Corroboration is not required. Cope v. State, supra.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I do not believe the appellant’s confession was voluntarily given because the record discloses that she did not knowingly and intelligently waive her Fifth Amendment right to remain silent. She was tricked into making the inculpatory statement by an expert. I do not rely entirely on the lack of an express waiver in the rights form as the basis for this dissent. The majority correctly holds that it is not an absolute requirement that a waiver be written or expressed. Without a doubt a proper written waiver would be most helpful. I can think of no valid reason why the state police should not use a proper form in such matters. Several years after the statement in Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1983), there is still no evidence of change. Such change would save time and expense to the police and the courts. An accused does not waive his rights merely by having them explained to him.

The appellant was thirty-seven years of age and had not completed high school, although she had twice tried to obtain a GED. This was her first encounter ever with the law. She had been held in jail overnight before being hooked up to a polygraph machine for testing. The results of the test, even if incriminating, would not have been admissible. After completing the test and finding it to be inconclusive, the officer did not reveal the results to her, but rather told her that her husband had been man enough to give a written statement and come clean about the matter and she ought to do likewise. The officer admitted it was routine to act disappointed if the tests were inconclusive. This gives him a psychological advantage, especially over uneducated and inexperienced persons. He stated his purpose well when he said, “I felt it was my job to get that statement from her that day.” When it is considered that her husband had confessed and in doing so had exonerated her, and she had previously maintained her innocence, it becomes clear that the police had overreached their authority in order to obtain the written confession. A confession was the state’s only hope at this point of the case.

The court allowed videotaped depositions upon the word of a social worker that she felt it would always be easier for children to testify by videotape; No doubt it would. The same statement would apply to about ninety-nine percent of all witnesses. There was no reason given other than it was in the best interests of the children. “Many factors can and should be considered in determining what is good cause” to take video depositions. McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986). The legislature might as well have left the words “for a good cause shown” out of the statute if it is entirely up to the prosecutor, or a social worker to subjectively decide whether to take videotaped instead of live testimony. These children told a lot of conflicting stories and did a goodly amount of “acting out” sexual acts even after they were in foster homes. They said it just came naturally. They should have been subjected to the same procedures of confrontation as any other witnesses.

I would remand for a new trial.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice,

text:
    Michael BOYD, a Minor, by his Father and Next Friend, Charles BOYD v. Homer G. CONNELL, et al.
    87-137
    739 S.W.2d 536
    Supreme Court of Arkansas
    Opinion delivered November 16, 1987

      Pulliam, Davis & Wright, by: Nelwyn Davis, for appellant.

      Wright, Lindsey & Jennings, for appellees.
   Robert H. Dudley, Justice.

On September 24, 1983, Robert Connell, aged 16, had a driver’s instruction permit which authorized him to drive an automobile while accompanied by a licensed driver. See Ark. Stat. Ann. § 75-310(a) (Repl. 1979). While driving a friend’s car without being accompanied by a licensed driver, he ran into a car driven by James Finch. Michael Boyd was a passenger in the Finch car and was injured in the wreck. Michael Boyd filed suit against Finch and his parents, against the owner of the car Finch was driving, against the owners of the car Robert was driving, and against Robert and his parents. Pursuant to ARCP Rule 68, all of the defendants except Robert’s parents made a $17,000.00 offer of judgment. The offer was accepted, leaving only Robert’s parents as defendants in the suit. The amended complaint against Robert’s parents stated that they knew he was driving a car in violation of state law, that he had prior automobile accidents and, before that, had received traffic citations, and that, in allowing him to drive, the appellees were negligent in the supervision of their child. Depositions showed that about six months before this wreck, Robert had a wreck in his mother’s car and had received three traffic citations while operating a motorcycle. Robert’s parents have not controverted the allegation that they knew he was driving the borrowed car in violation of state law.

Robert’s parents moved for a summary judgment. The trial court granted it on the basis that liability based on a minor’s negligence is extinguished by a settlement of the claim against the minor. We reverse.

The plaintiff below, Michael Boyd, is not asserting a right to recover on the basis of imputed or vicarious liability. Instead, he is asserting a right to bring a direct action against the appellees for the negligent supervision of their child. See Restatement (Second) of Torts § 316 (1965). This court recognized an action for negligent supervision in Bieker v. Owens, 234 Ark. 97, 350 S.W.2d 522 (1961). We wrote:

[H]ere we are not concerned with the negligence of a child but with the negligence of the parent in permitting either actively or passively, a minor willfully or negligently to commit such acts which could reasonably be expected to cause injury to another.

Id. at 99, 350 S.W.2d at 524.(emphasis added).

In describing the tort, we wrote:

[W]here the parent (1) has the opportunity and ability to control a minor, and (2) has knowledge of the tendency or proclivity of the minor to commit acts which could normally be expected to cause injuries to others, and (3) after having such opportunity, ability and knowledge has failed to exercise reasonable means of controlling the minor or appreciably reduce the likelihood of injury to others because of the minor’s acts, the parent should be made to respond to those who have been injured by such acts of the minor.

Id.

The appellees argue that even if they were guilty of the negligent supervision of their son, the court ruled correctly in granting the summary judgment because the case against their son has been settled and that precludes a court from ever finding him guilty of the negligence which is the proximate cause of the injury. The argument is not convincing. Even though the settlement with the son precludes further action against him, it does not preclude a court from examining his actions as they relate to third parties in a separate and distinct cause of action.

Reversed.

Holt, C.J., and Hickman, J., dissent.

Darrell Hickman, Justice,

dissenting. I would affirm because the complaint failed to state sufficient facts upon which relief could be granted. See Joey Brown Interest, Inc. v. Merchants Nat’l Bank of Fort Smith, 284 Ark. 418, 683 S.W.2d 601 (1985).

Holt, C.J., joins in the dissent.