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    Mark Edward GARDNER v. STATE of Arkansas
    CR 86-163
    754 S.W.2d 518
    Supreme Court of Arkansas
    Opinion delivered June 20, 1988

      Pruitt & Hodnett, by: Roger T. Jeremiah, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Mark E. Gardner was charged with two counts of capital murder in connection with the December 1985 strangulation deaths of Joe and Martha Joyce and the Joyces’ daughter, Sara McCurdy. Gardner was convicted and sentenced to death by lethal injection on both counts. Twenty-one points are raised on appeal. With few exceptions, we will treat each point separately. In addition to the points argued by Gardner, we have examined all other objections made during the trial in accordance with Rule 11 (f) of the Rules of the Supreme Court and the Court of Appeals. Finding no error, we affirm.

Shortly after 2:00 p.m. on December 12,1985, the bodies of Mr. and Mrs. Joyce and Sara McCurdy were discovered in the Joyce residence in Fort Smith, Arkansas. Mr. Joyce was found in one room tied to a chair with his own neckties. His feet had been bound and he had been gagged. A necktie was wrapped about his neck so tightly that it had to be cut free. Mrs. Joyce was found bound and gagged in one of the bedrooms. At the trial, the medical examiner testified that Mr. and Mrs. Joyce died of strangulation. Sara McCurdy was found in another bedroom with a belt wrapped around her neck. She too had been bound and gagged. Additionally, a coat hanger had been twisted about her neck. She was taken to a local hospital with the expectation that she might be revived but was pronounced dead on arrival. The cause of death was strangulation. At trial, the State produced evidence that Sara McCurdy had been raped.

Cindy Griggs — Sara McCurdy’s sister and co-worker — testified that an inventory of the items in her parents’ home revealed that a bag of silver coins, money, knives, a purse, binoculars, and numerous pieces of jewelry were missing. The witness described the knives, purse, binoculars, and jewelry with particularity.

Additional testimony by other witnesses developed the following. Sara McCurdy had left work at 11:15 a.m. on December 12 to drop off her car, a 1977 Buick LaSabre, at her parents’ home. It had been planned that Mr. Joyce would take Sara back to work after lunch, but she never returned. Calls to the Joyce residence between 12:30 and 2:00 went unanswered. Subsequently, the victims’ bodies were discovered by a relative. It was determined at that time that Sara McCurdy’s car was missing.

Earlier on December 12, at approximately 3:30 a.m., Gardner had checked into the Regal 8 Inn in Fort Smith. Shortly before 11:00 a.m. he was seen walking in the direction of May Avenue in Fort Smith. Between 11:00 and 11:30, in a shop on May Avenue, Gardner asked for directions to Linwood Street. The directions given would have taken him within one block of the Joyce residence. The next time Gardner was seen was shortly before 2:00 p.m. near Pocola, Oklahoma. He was driving a 1977 Buick LaSabre later found abandoned near Pocola and identified as belonging to Sara McCurdy.

The abandoned vehicle had been left near a service station where Gardner obtained a ride to the Fort Smith bus station. He was described as carrying a purse matching the description of the one taken from the Joyce residence. From Fort Smith, Gardner took the bus to Little Rock. At the Little Rock bus station, he attempted to sell numerous pieces of jewelry and several silver coins to persons who testified for the State at trial and described the jewelry and coins in detail. After his arrival in Little Rock, Gardner checked into the Downtowner Motor Inn and on December 13 he pawned some of the jewelry at Maxie’s Pawn Shop in Little Rock.

Based upon a description of Gardner and information that he was trying to pawn jewelry in Little Rock and obtain a ride to Fort Smith, undercover Arkansas State Police officers went to the Little Rock bus station in an unmarked vehicle and offered Gardner a ride to Fort Smith if he would pay for the gas. Gardner agreed. He was arrested in route to Fort Smith at a point near Clarksville. On that same day, officers obtained custody of the jewelry that had been pawned at Maxie’s in Little Rock. That jewelry was taken to Clarksville where it was identified by Cindy Griggs as the jewelry missing from her parents’ home.

On December 14, the police searched Gardner’s room at the Downtowner Motor Inn in Little Rock pursuant to a warrant. The search produced several items later identified as having been taken from the Joyce residence. On December 16, one of the officers returned to the Downtowner Inn and took custody of certain items seen but not seized during the original search. These items had been removed and secured by employees of the Inn. Among those items was the purse Gardner had been carrying near Pocola which had belonged to Mrs. Joyce.

I. VENUE

Gardner filed a pretrial motion for change of venue on the grounds that he could not receive a fair and impartial trial in Sebastian County. In support of his motion, Gardner introduced testimony by individuals associated with the news media who described the coverage the triple homicide had received. Gardner also introduced testimony by four witnesses who stated that they did not believe Gardner could get a fair trial in the county. The motion for change of venue was denied.

The record reveals that the Joyce and McCurdy murder investigation was a “lead” story at least on the day the crime was discovered and possibly one to two days thereafter. However, the primary coverage received by the event ended within approximately five days. During that period and afterwards, the news media broadcast not only pictures of Gardner but also information concerning: (1) the scene of the murders, including speculation on how the murders were committed; (2) the items allegedly found on Gardner and speculation that they had been taken from the Joyce residence; (3) charges against Gardner in Illinois involving his alleged breaking and entering a home, blindfolding the occupants, raping the female occupant at knifepoint, and taking money; (4) statements made by Gardner to the undercover officers in route to Fort Smith that he was possessed by demons, had a gun, would kill the officers if they “messed” with him or should it turn out that they were police officers, that he had killed someone in Chicago, wanted to kill a pawn broker in Little Rock, and was going to obtain cocaine in Fort Smith; (5) statements to a bus station employee that Gardner had killed a woman and had taken her jewelry; and (6) Gardner’s record from another state and that he was paroled from prison.

In response to Gardner’s motion, the State introduced twelve affidavits and presented the testimony of five witnesses to the effect that Gardner could receive a fair trial in the county. The testimony of those witnesses generally indicated that they remembered little if anything about the crime, or that what little they remembered would not affect their ability to give Gardner a fair trial. The State also cross-examined several of appellant’s witnesses — many of whom stated that notwithstanding the coverage received by the event, they had conversed with few persons, if any, who had recently even mentioned the crime. Those witnesses who were members of the news media stated that there was nothing about the coverage that would prevent them from giving Gardner a fair trial and that they had not formed an opinion on his guilt or innocence.

A change of venue should be granted only when it is clearly shown that a fair trial is not likely to be had in the county. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). The burden of proof is on the defendant, and the decision of the trial judge will be upheld unless it is shown that there was an abuse of discretion in denying the motion. Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979). We have emphasized the significance of the trial court’s opportunity to observe the witnesses, and have held that those witnesses who state that the appellant cannot receive a fair trial must be able to show that they either have a general knowledge as to the state of mind of the inhabitants of the whole county or that they are cognizant of prejudice existing throughout the whole county. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982).

We have also held that it is not necessary that jurors be totally ignorant of the facts surrounding the case, as long as they can set aside any impression they have formed and render a verdict solely on the evidence at trial. Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978), cert. denied, 449 U.S. 1057 (1980). There can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

While there are elements of this case resembling those before this court in Ruiz & Van Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979), cert. denied, 454 U.S. 1093 (1981), we conclude that Gardner failed to show that a fair trial was not likely to be had. We therefore find no abuse of discretion by the trial court.

First, a review of the news coverage in this case — when combined with the testimony of the witnesses — suggests that any prejudicial effect as to the manner in which the story was covered was either dissipated by the passage of time between the crime and the subsequent trial, or was never so severe as to affect the minds of the inhabitants of the county. Second, none of the witnesses presented on Gardner’s behalf exhibited a general knowledge as to the state of mind of all those living in Sebastian County or stated that they were cognizant of prejudice existing throughout the whole county. Finally, each person eventually seated as a juror in the case stated that he or she would be able to give Gardner a fair trial and follow the instructions of the court. Accordingly, we find no error on this point.

II. PRETRIAL TRANSCRIPTS

At the pretrial stage, Gardner requested transcripts of all pretrial proceedings on the grounds that it “may be necessary ... to use some of the testimony. . .for impeachment purposes at the trial.” The request was denied. Gardner later renewed the request as to portions of the pretrial proceedings contending that the defense “would like to be able to quote the witnesses verbatim in case their testimony varies during the trial.” The trial court again denied the request.

At trial, Gardner raised the issue a third time when testimony of a State’s witness regarding her ability to identify Gardner as the individual in Sara McCurdy’s vehicle near Pocola varied from her previous testimony during a pretrial hearing. Once again, the court denied the request.

On appeal, Gardner argues that he was denied effective assistance of counsel and the right to confront witnesses against him. As to the first point, Gardner failed to make the argument below. Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988). As to the second point, with the exception of Graves v. State, 256 Ark. 117, 505 S.W.2d 748 (1974), cited in Gardner’s reply brief, no authority is given for the proposition that transcripts of pretrial proceedings must be furnished merely because the defense “might” impeach the credibility of the State’s witnesses at trial in the event the occasion to do so should arise.

While there is mention in Graves of the benefit associated with a defendant’s access to transcripts of pretrial proceedings, our decision in that case is clearly distinguishable from the facts before us now. Our comments in Graves simply emphasized that when a court fails to provide the defendant with counsel at a preliminary hearing, evidence that the defendant had access to transcripts of the hearing was relevant on the issue of whether defendant was prejudiced by the error in not appointing counsel. Here, Gardner does not contend that he did not have pretrial counsel. In any event, Graves did not create an affirmative obligation with respect to providing access to pretrial transcripts. Additionally, at the time of our decision in Graves, error was presumed prejudicial in the absence of an affirmative showing to the contrary — a rule which this court no longer follows. Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987).

Nonetheless, we do find decisions from the United States Supreme Court which indicate that the State must provide an indigent defendant with a transcript of pretrial proceedings when that transcript is needed for an effective defense. Britt v. North Carolina, 404 U.S. 226 (1971); Roberts v. LaVallee, 389 U.S. 40 (1967). In each case, the focus has been on whether the trial court properly determined that the transcript was in fact not needed for an effective defense. The inquiry balances the value of the transcript to the defendant and the availability of alternative devices that would fulfill the same function as a transcript.

While there is language in Britt suggesting that the right to a transcript does not turn on whether the defendant specified at the trial level why the transcript was needed or whether the defendant had access to the court reporter’s notes, we cited Britt in Mosby v. State, 253 Ark. 904, 489 S.W.2d 799 (1973), and stated that it was significant that appellant had failed to make any showing “that the transcript was needed to prepare his defense . . . [n]or was it shown that the reporter’s notes . . . could not have been read back if and when they were needed.” We find those same considerations determinative here.

The record reveals that at the time the initial requests were made for transcripts of the pretrial proceedings, the requests were based entirely upon conjecture and speculation that there “might” arise a need for the transcripts at trial. We would be hard pressed under those circumstances to say that the trial court erred in denying the requests at that juncture. Moreover, the record is devoid of any indication that later, when the alleged inconsistencies between pretrial and trial testimony were discovered, defense counsel made even the slightest effort to avail himself of the common practice of asking the trial judge to have the court reporter read back the reporter’s notes of those parts of the pretrial hearings relevant to the testimony at issue. As such, we cannot say that the trial court erred in denying Gardner’s requests.

Our position on this issue finds further support in light of Gardner’s failure to demonstrate that the trial court’s action was prejudicial. Sutherland, supra. The focal point of Gardner’s argument rests upon the contention that whereas one of the State’s witnesses testified at the pretrial stage that she merely got a glimpse of Gardner’s profile as he drove past her in Sara McCurdy’s car, her trial testimony was that she was also able to see Gardner’s face. We have carefully examined defense counsel’s cross-examination efforts at trial as to this witness and find that counsel was able not only to effectively impeach the credibility of the witness by exposing the inconsistent testimony but actually managed to get the witness to admit she only glanced at the person in the car for a split second, mainly got a side view of the person, and didn’t see enough of the face to even tell whether the person had facial hair or what his facial features were. That testimony parallels the pretrial testimony to an extent that any alleged inconsistencies, for all practical purposes, no longer existed — thereby rendering the need for the pretrial transcript of so little value that any error in denying Gardner’s request would have been harmless at best. For the foregoing reasons we find Gardner’s arguments on this issue without merit.

III. THE DEATH PENALTY

Gardner argues that imposition of the death penalty constitutes cruel and unusual punishment. This point has no merit as it has been decided adversely to Gardner’s position in prior cases. Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, cert. denied,_U.S__, 108 S. Ct. 269 (1987).

IV. ILLEGAL SEARCH

One of the items subject to seizure pursuant to the warrant used to search Gardner’s room at the Downtowner Motor Inn was the purse Gardner was seen carrying near Pocola which was later identified as having belonged to Mrs. Joyce. In conducting the search on December 14 pursuant to the warrant, officers examined the purse but did not recognize it for what it was and failed to seize it prior to concluding the search. After receiving clarification as to the description of the purse, one officer returned to the Inn on December 16 and without a warrant requested and obtained custody of the purse and other items from employees of the Inn who had removed for storage all items remaining in Gardner’s room after the initial search.

Gardner objected to introduction of the purse on the grounds that the evidence was illegally seized. The trial court admitted the evidence on the basis that it was “still covered” by the warrant and had been in plain view when the officer obtained custody. The court also found that after removal of the purse from Gardner’s room by employees of the Inn, there no longer existed an expectation of privacy in the purse such as would warrant Fourth Amendment protection.

The Fourth Amendment’s exclusionary rule protects against unlawful searches and seizures which violate the defendant’s own constitutional rights, and those rights are violated only if the challenged conduct invaded the defendant’s legitimate expectation of privacy. Rakas v. Illinois, 439 U.S. 128 (1978); State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986). In view of the facts before us, we conclude that at the time custody of the purse was obtained by the officer, Gardner no longer could be said to have had an actual expectation of privacy which society would be prepared to recognize as reasonable. Hamzy, supra.

The record discloses that employees of the Downtowner Inn took possession of all items remaining in Gardner’s room pursuant to the Inn’s standard procedures. For code provisions governing liens on baggage and other property of potential or past motel guests, and the disposition thereof, see Ark. Code Ann. §§ 20-26-304 and 20-26-305 (1987). The items were then placed in storage by employees of the Inn, and there is absolutely no evidence that this action was done with the connivance of or at the behest of the police. Cf. Walker v. State, 244 Ark. 1150, 429 S.W.2d 121 (1968) (the search and seizure clauses are restraints upon the government and its agents, not upon private individuals).

While Gardner may have had certain rights as to the seizure of property from the motel room, we fail to see how it can be said that at the time the officer obtained custody of the purse from employees of the Inn, Gardner still retained an expectation of privacy in the purse which would be recognized as reasonable by society and would warrant invocation of the Fourth Amendment’s exclusionary rule. It is true that Gardner’s inability to return to his room was not of his own chosing and that the officer could have obtained a second warrant authorizing seizure of the purse. These factors, however, do not affect our conclusion that Gardner could not reasonably claim an expectation of privacy in the purse after employees of the Inn had removed it from Gardner’s former room and had taken it into their possession. Seizure of the bag by the officer was not unlawful, and the court did not err in failing to suppress the evidence.

Furthermore, we do not find that the trial court erred in failing to suppress the contents of the purse. While acting pursuant to a valid warrant, the officers responsible for the original search of Gardner’s room opened the purse and examined its contents. Thereafter, the purse was secured by employees of the Inn. There is no indication that the purse was opened or its contents disturbed until the officers again obtained the purse from employees of the Inn and inventoried its contents. Under these limited circumstances, we conclude that whatever expectation of privacy Gardner might have had in the contents of the purse was not such that the subsequent examination of the contents of the purse would, under the Fourth Amendment, operate to exclude the evidence.

V. MIRANDA WARNINGS

Gardner contends that the trial court erred by not suppressing statements made to the undercover officers who had offered Gardner a ride to Fort Smith. According to Gardner, the statements should have been suppressed because he was not advised of his Miranda rights prior to making the statements. The argument is meritless because it is premised upon the misconception that Miranda warnings are required whenever the State’s investigation has “focused” on the defendant — notwithstanding a complete absence of the complusive aspect of custodial interrogation. That interpretation of the Miranda decision has been flatly rejected. Beckwith v. United States, 425 U.S. 341 (1976).

As noted by the Supreme Court in Beckwith, the warnings required under Miranda v. Arizona, 384 U.S. 436 (1966), come into play only when the defendant is subjected to custodial interrogation or the functional equivalent thereof in that he has been deprived of his freedom of action. In Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985), we cited language by the Supreme Court to the effect that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a degree associated with formal arrest. We stated that no Miranda warnings are required if the questioning by officers is simply investigatory and that an officer’s unarticulated intent has no bearing on the question of whether a suspect is in custody; rather, on that issue, the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.

The record before us clearly discloses that Gardner was seeking a ride to Fort Smith, and the officers merely indicated that they were going in that direction and could give Gardner a ride if he would pay for the gas. Gardner agreed. One of the officers testified that he had orders not to pursue the matter should Gardner decline the offer. During the trip, Gardner left the vehicle on at least two occasions — once to purchase beer at a Road Runner stop-and-go and later to use the restroom. There is simply no evidence of a curtailment of freedom to a degree associated with formal arrest. Here, as in Beckwith, supra, appellant’s argument would cut the Supreme Court’s holding in Miranda “completely loose from its own explicitly stated rationale.”

VI. MOTION TO QUASH THE JURY PANEL

Gardner argues that he was denied his right to trial by jury in that the Arkansas system of selecting jurors at random from the current list of registered voters, Ark. Code Ann. § 16-32-103 (1987), does not result in a jury drawn from a fair cross-section of the community as a whole. Gardner also argues that this state’s system of exempting certain professionals from jury service, Ark. Code Ann. § 16-31-103 (1987), constitutes a further prejudicial narrowing of the juror pool.

Gardner’s proof at the trial level on either issue was so deficient that the motion to quash the panel could not reasonably have been sustained. For that reason, this court will not consider striking down legislation when presented with arguments supported by such inadequate proof. Sullivan v. State, 287 Ark. 6, 696 S.W.2d 709 (1985). See also Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

VII. PHOTOGRAPHS

On this point, Gardner contends that the court erred in not excluding various photographs depicting the bodies of the victims and the ransacked home. He contends that the prejudicial effect of the photographs outweighs their probative value, primarily because there is nothing depicted in the photographs which is connected to the appellant.

The admissibility of photographs is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987). We have often said that even inflammatory photographs may be admitted if they tend to shed light on any issue, if they are useful to enable a witness to better describe the objects portrayed, or if they better enable the jury to understand the testimony. Fitzhugh, supra; Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986); Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973).

We have examined the photographs at issue and find that whatever minimal prejudicial effect could be ascribed to them is clearly outweighed by their relevance and usefulness in enabling the jury to understand the testimony describing the scene and the circumstances surrounding the victims’ deaths. The trial court committed no error in admitting the challenged photographs.

VIII. MOTION TO DISMISS

Before trial, the defense filed a motion to conduct a hearing on whether there was probable cause to continue Gardner’s pretrial detention without bail. At the conclusion of the hearing, Gardner moved to dismiss the second count of capital murder, namely, that in the course of committing a rape or attempting to commit a rape, Gardner had caused the death of Sara McCurdy. The basis for Gardner’s motion was that the State had failed to prove that Gardner had raped Sara McCurdy. Because the trial court found probable cause to detain Gardner in connection with the deaths of all three victims, the motion was denied.

Rule 8.4(c) of the Arkansas Rules of Criminal Procedure provides that in making his determination on the issue of the defendant’s pretrial release, the presiding judicial officer shall “determine by an informal, non-adversary hearing whether there is probable cause for detaining the arrested person pending further proceedings. The standard for determining probable cause at such hearing shall be the same as that which governs arrests with or without a warrant.”

The issue, therefore, is whether there is probable cause to continue detaining the suspect, not whether the State will be able to prove every element of its case on each of the charges. Probable cause is said to be “only a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that a crime has been committed by the person suspected.” Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986). By the conclusion of the preliminary hearing, the State had clearly presented sufficient evidence to demonstrate probable cause to continue holding Gardner for the murders of Mr. and Mrs. Joyce and Sara McCurdy. That being the case, the primary function of the hearing — whether Gardner should remain in custody — had been accomplished. Its purpose in protecting both the State’s interests and the appellant’s rights had been fulfilled. See State v. Garrison, 272 Ark. 470, 615 S.W.2d 371 (1981). Hence, no prejudice could result from any alleged failure on the part of the State to present sufficient proof as to the rape charge at this juncture in the proceedings.

IX. FAILURE TO EXCUSE JURORS FOR CAUSE

On this point, Gardner contends that the trial court erred in failing to excuse for cause six potential jurors — three of whom were eventually seated — and that the court’s failure to do so denied Gardner a fair trial. We disagree.

To succeed on this point, Gardner must show that one of the jurors actually seated should have been excused for cause. In order to make that showing, Gardner must demonstrate that after exhausting all of his peremptory challenges, he was forced to accept a juror against his wishes. Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986); Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985), overruled on other grounds, Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987). Therefore, we do not consider Gardner’s arguments as concerns jurors either accepted by him while he had peremptory challenges remaining or those not accepted by appellant but excused by peremptory challenge. Two jurors were seated, however, after Gardner had exhausted his peremptory challenges. Both had been challenged for cause by Gardner.

On this particular issue, it is not necessary that jurors be totally ignorant of the facts surrounding the case, as long as they can set aside any impression they have formed and render a verdict solely on the evidence at trial. Swindler, supra. Also, jurors are presumed unbiased and the burden of proving actual bias is on the party challenging the juror. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). We will look closely, however, at whether a particular juror who has been challenged was actually unbiased notwithstanding the State’s success in rehabilitating the juror. Pickens, supra; Ruiz & Van Denton, supra. The trial court’s decision will not be reversed absent an abuse of discretion. Fleming, supra.

As to one of the two jurors at issue, James Curtis, the appellant argues that the juror was predisposed to finding appellant guilty and that he was in favor of imposing the death penalty. Contrary to appellant’s latter contention, Curtis, when asked by defense counsel what his feelings were about the death penalty, stated:

Well, I believe if the evidence indicated guilt I could vote for the death penalty. I may be less comfortable with that than I would be the other penalty [life without parole] simply because it, you know, it means there’s absolute certainty. There’s no coming back.

With respect to the assertion that Curtis was predisposed to finding Gardner guilty, defense counsel had on two separate occasions inquired whether Curtis felt that it was more probable than not that Gardner was guilty by virtue of the fact that Gardner was the one arrested for the crimes. Each time, Curtis responded that Gardner’s arrest only left him with the impression that there must have been some basis for the arrest. He added, however, that he would listen to the evidence and decide the case on that basis alone.

As to the other juror, Mrs. Dean Bland, appellant contends that the juror was predisposed in favor of imposing the death penalty. At one point, defense counsel inquired what the juror’s feelings were about the death penalty. She responded that she believed in the death penalty but thought there were times it should be tempered with mercy and that there were situations where the death penalty would not be appropriate even if the defendant were guilty. She also added that she was not leaning towards either penalty in the present case. Defense counsel then inquired whether she would lean towards the death penalty if Gardner was found guilty. Mrs. Bland stated that if Gardner were proven guilty beyond a reasonable doubt, and depending upon the evidence relevant to his motive or mental state, she would lean towards the death penalty. She also stated on direct examination during voir dire that she could vote for either penalty, but it would be a difficult thing to vote for the death penalty, and she could not say which way she would vote before hearing the evidence.

We have carefully examined the record as to both jurors. There is nothing to indicate that they could not follow the instructions of the court or set aside whatever impressions they might have and give Gardner a fair and impartial trial. Certainly, there was no abuse of discretion by the trial judge on this issue.

X. ADDITIONAL PEREMPTORY CHALLENGES:

XL EXCLUSION OF EVIDENCE

For his tenth point, Gardner argues “that Arkansas Law allows additional peremptory challenges at the discretion of the Trial Court,” and that it was an abuse of discretion to deny Gardner’s request for five additional peremptory challenges after he had exhausted the twelve allowed by Ark. Code Ann. § 16-33-305 (1987). For his eleventh point, Gardner contends that certain items of evidence, such as photographs of the material used to gag the victims, were inadmissible because they could not be connected or traced to Gardner.

However, Gardner has failed to cite any authority for either broad proposition and has failed entirely to provide convincing argument on these points. If, without further research, it appeared at all that the arguments were well taken, we could ignore the failure to cite authority. Under the circumstances, because the arguments are so obviously lacking in merit and are unsupported by any citation of authority, we decline to research the issues on appellant’s behalf and will not consider either point. Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

On Gardner’s eleventh point, we should further note that the proposition put forth, which in some instances would limit the proof to direct evidence only, ignores the rationale behind Rules 401 and 402 of the Arkansas Rules of Evidence.

XII. TATTOOS

At trial, one of the State’s witnesses who had seen Gardner near Pocola, Oklahoma, described certain tattoos on Gardner’s forearms. The prosecutor then asked that the witness be allowed to view Gardner’s forearms in the court room. Defense counsel indicated that this should have occurred prior to trial, and the prosecutor withdrew his request. Gardner moved for a mistrial, which was denied. On appeal, Gardner contends that the trial court erred in denying his motion for a mistrial and asserts that where identification is an issue, forcing Gardner to display his forearms would violate his Fifth Amendment right not to incriminate himself. From that, Gardner suggests that the prosecutor made his request knowing that he would withdraw it and that this was done only to make Gardner appear guilty in the eyes of the jurors by virtue of defense counsel’s in-court objection to having Gardner display his arms. We find no merit to the argument.

The protections of the Fifth Amendment do not extend to demonstrative, physical tests, but are intended to immunize the defendant from providing the State with evidence of a testimonial or communicative nature. Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985). The prosecution’s request that Gardner display his arms was perfectly proper — as would have been an order by the court that Gardner comply with the request. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). Gardner’s second assertion is based entirely upon unfounded speculation, unsupported either by citation of authority or convincing argument. We find no evidence that the prosecutor made his request in anything other than good faith, and while the request was withdrawn notwithstanding that it was within the court’s discretion to grant it, we find no indication in the record that any prejudice resulted therefrom. Certainly not to an extent warranting a mistrial, which we have stated is a drastic remedy that is only appropriate if justice cannot be served by continuation of the trial and when it is obvious that the prejudice could not be removed by any other means. Birchett v. State, 294 Ark. 176, 741 S.W.2d 267 (1987).

XIII. PECUNIARY GAIN

Gardner argues the prohibition against “double-counting” as set out in Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013 (1985), was violated by the manner in which the prosecutor argued pecuniary gain as an aggravating circumstance before the jury, and because pecuniary gain was in fact submitted to the jury as an aggravating circumstance. We find the argument to be totally without merit.

First, Count I charged that Gardner had caused the deaths of at least two persons during the same criminal episode. Count II charged that Gardner had committed or attempted to commit rape and in the course thereof or in furtherance thereof had caused the death of Sara McCurdy. See Ark. Code Ann. § 5-10-101 (1987). On both counts, the jury found that the aggravating circumstance was that Gardner had on a prior occasion (the incident in Illinois) committed a felony an element of which was the use or threat of violence to another, creating a substantial risk of death or serious physical injury. See Ark. Code Ann. § 5-4-604 (1987) .

Second, as this court noted in O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988), the double-counting issue in capital murder cases was resolved by the Supreme Court’s recent decision in Lowenfield v. Phelps,_U.S._, 108 S. Ct. 546 (1988) . The Supreme Court in Lowenfield stated that, to pass constitutional muster, a capital-sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. In O’Rourke, we found that in Arkansas the mandated narrowing function was performed at the guilt phase, and we quoted language from Lowenfield that, therefore, “ ‘the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm.’ ”

XIV. CHAIN OF CUSTODY

Gardner challenges the court’s failure to prevent introduction of evidence (jewelry) for lack of a proper chain of custody. The jewelry was obtained from inside a tan bag which Arkansas State Police officers in Little Rock had confiscated from Gardner’s motel room and had inventoried but in which they had failed to find jewelry. The jewelry was not found until officers from Fort Smith, who obtained custody of the bag from the Little Rock officers, again inventoried the contents of the bag and found the evidence in a zippered side compartment.

The purpose of the rule requiring a chain of custody is to prevent the introduction of evidence which is not authentic. If the trial court is satisfied that in reasonable probability the evidence has not been tampered with, it is not fatal that the State did not eliminate every possibility of tampering. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, 440 U.S. 911 (1979). In such matters, the trial court is accorded some degree of discretion and in the absence of evidence indicating tampering, we will not reverse the trial judge’s ruling unless we find an abuse of discretion. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). Here, a clear chain of custody had been established as to the tan bag itself, and there was absolutely no evidence of tampering with the bag or its contents. Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render evidence inadmissible as a matter of law. Gardner, supra.

Moreover, when an object is subject to positive identification, such as the jewelry at issue here, as opposed to blood samples or drugs, the proof of chain of custody need not be as conclusive as it should be with respect to interchangeable items. White, supra. In any event, introduction of the jewelry would have been harmless error at best given the numerous other items found either in Gardner’s room, on his person, or which had been pawned by Gardner and had originally been taken from the Joyce residence. As such, we find no abuse of discretion by the trial court in admitting the evidence.

XV. OFFICER’S TESTIMONY

Gardner contends that the trial court erred in denying his motion for a mistrial when, on examination of one of the police officers, testimony was elicited that the officers investigating the murders stopped looking for other suspects after they found out that “Mark Gardner, who was wanted at the time, had pawned articles in Little Rock.” Appellant suggests that the term “wanted” as used by the officer was a reference to the charges pending against Gardner in Illinois, which evidence should not have come before the jury.

We find no merit to Gardner’s argument because he is unable to show how he was prejudiced. First, the officer testified in chambers that what he meant was that Gardner was wanted locally in connection with the murders and that the search for other suspects ended when it was learned that Gardner had pawned “jewelry” in Little Rock. Also, the officer stated he did not even know of the Illinois charges until after Gardner’s arrest. Second, defense counsel refused the court’s offer of an admonition to the jury because he did not want to draw attention to the officer’s statement, and he failed to ask that the statement be stricken from the record. See Birchett, supra. Under these circumstances, we find no error in the trial court’s refusal to grant Gardner’s motion for a mistrial.

XVI. DIRECTED VERDICT

On this point, Gardner “requests that the Court review the entire record to determine whether sufficient evidence exists to support a conviction of two counts of capital murder. In particular, Count II . . . [as there] is absolutely no evidence that Appellant raped Sara McCurdy.” Gardner contends that the trial court erred in failing to direct a verdict in his favor on both counts.

Motions for a directed verdict constitute challenges to the sufficiency of the evidence, and on appellate review we seek to determine whether the verdict is supported by substantial evidence. Nichols v. State, 280 Ark. 173, 655 S.W.2d 450 (1983). Substantial evidence, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond suspicion or conjecture, and a verdict should only have been directed below where there was no evidence from which the jury could have found the defendant guilty without resorting to surmise and conjecture. Id.

In determining the sufficiency of the evidence, it is necessary to ascertain only the evidence favorable to the appellee State, and it is permissible to consider only that testimony which supports the verdict of guilt. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983). Even circumstantial evidence may be sufficient to sustain a conviction, Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987), as it may constitute substantial evidence. Whether the circumstantial evidence excludes every other reasonable hypothesis is for the fact finder to determine. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984).

We have diligently examined the record, as we must, and fail to see how appellant can seriously contend that there is insufficient evidence to support the verdicts of guilt on either count of capital murder. The facts which support the verdict have been set out and we do not repeat them here. On the underlying felony of rape, we add only that the State introduced the testimony of a forensic serologist who stated that his examination of Sara McCurdy established the presence of semen. One of the officers testifying on behalf of the State added that Sara Mc-Curdy was found with her jeans pulled on, but that she had no undergarments on. There was additional testimony by Cindy Griggs that Sara McCurdy was having her menstrual period, and the officer testified that a wet tampon was found by the bed in a bedroom other than the one where Sara McCurdy was found. These facts must be viewed in light of testimony that Sara McCurdy was on a lunch break from work; all of which supports the charge that the murder of Sara McCurdy took place during the commission of a rape or in furtherance thereof. We find no error in the trial court’s failure to direct a verdict in appellant’s favor.

XVII. NEWSPAPER ARTICLE

Gardner contends that the court erred in not having sequestered the jury and in failing to grant his motion for a mistrial when on the final day of trial it was brought to the court’s attention that on the preceding evening a newspaper article had been published containing material prejudicial to appellant. Gardner concedes that the trial court had instructed the jurors not to read anything about the case and that when the court inquired of the jury whether anyone had read the article in question, it was determined that none of the jurors had even seen it. On this point, Gardner does no more than complain about the potential of prejudice — something for which we do not reverse. Berna, supra. See also Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979).

XVIII. TRIAL COURT ERRED IN PERMITTING EXAMINATION OF WITNESSES FROM ILLINOIS AS TO ALLEGED CRIMES COMMITTED BY APPELLANT IN THAT STATE

At the sentencing phase of Gardner’s trial, the court allowed the prosecution to bring in a couple from Illinois who testified in detail as to crimes committed against them by appellant in that state. The crimes involved breaking and entering, rape, and theft. The State’s purpose in introducing the testimony was to present evidence of a prior violent felony committed by Gardner. Ark. Code Ann. § 5-4-604(3) (1987). The couple’s testimony was corroborated to some extent by officers from Illinois who in turn linked appellant beyond a reasonable doubt to the crimes committed in that state by matching a footprint found in the home in Illinois to a tennis shoe found in Gardner’s room at the motel in Little Rock. Additional evidence linking appellant to the Illinois crime was also introduced.

Appellant’s challenge to the proceeding is that the State should only be allowed to show prior “convictions” not just prior felonies committed beyond a reasonable doubt, which can then be used by the jury in making its determination as to the type of punishment to be imposed. The exact argument has been rejected by this court in its interpretation of our statutes. See Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983). Gardner asks that we overrule our decision in Miller, but we have not been presented with any compelling reason to do so. Appellant’s point is without merit.

XIX. WITNESS IDENTIFICATION:

XX. JURY INSTRUCTION ON SEXUAL ACTIVITY

For his nineteenth point, Gardner reargues point number eighteen and adds that it was error to allow one of the witnesses from Illinois to testify as to having been raped during the episode in Illinois as she could not positively identify Gardner as the rapist. For his next point, Gardner argues that it was error to instruct the jury relative to the rape charge as there was insufficient evidence that Gardner had raped Sara McCurdy — an argument dealt with to some degree in point number sixteen.

In neither instance has Gardner provided us with convincing argument or with such citation of authority as would indicate that the points raised had any merit or were otherwise well taken. For that reason, and in light of our discussion on points sixteen and eighteen, respectively, we see no reason to address the arguments under this heading in any greater detail. Ricarte, supra; Dixon, supra.

XXI. NEW TRIAL

For his final point, Gardner argues that based upon the cumulative effect of all errors allegedly committed, it was error not to grant a new trial. The decision whether to grant a new trial is left to the sound discretion of the trial judge and will not be reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party. Foster v. State, 294 Ark. 146, 741 S.W.2d 251 (1987). In light of our disposition of the issues and points discussed above, and because we find neither an abuse of discretion nor manifest prejudice, the trial court’s denial of the motion for a new trial was proper.

Affirmed.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Hubert Lee MAXWELL v. Obie WALSER and David Walser
    88-40
    751 S.W.2d 351
    Supreme Court of Arkansas
    Opinion delivered June 20, 1988

      Griffin, Rainwater & Draper, P.A., for appellant.

      Compton, Prewett, Thomas & Hickey, P.A., by: Floyd M. Thomas, Jr., for appellees.
   Jack Holt, Jr., Chief Justice.

This appeal is from a judgment by the trial court, sitting as fact finder, by which appellee David Walser was to recover from appellant Hubert L. Maxwell $190.00 for medical expenses, an additional $5,000.00 compensatory damages, and $15,000.00 punitive damages. The award in favor of separate appellee Obie Walser for property damage has not been appealed. Maxwell contends that the awards of compensatory and punitive damages were excessive and not supported by the evidence to an extent that they must surely shock the conscience of this court and clearly demonstrate passion or prejudice on the part of the trial court. We disagree and affirm.

At trial, David Walser, who was the plaintiff below, testified substantially as follows. During the evening hours of September 1, 1982, Walser was driving his father’s El Camino Chevrolet truck on a small forest road running across property owned by his father, Obie Walser. At the time, this road was being used by Maxwell and others to haul timber from a tract of land located behind the Walser property. As David Walser was returning in the direction of his father’s house, his path was blocked by a vehicle being driven by Maxwell. Another individual, J. Saunders, was a passenger in the Maxwell vehicle.

Walser testified that as he stepped out of the truck, Maxwell and Saunders came around different sides of the truck and became belligerent, cursing and accusing Walser of stealing gas from Maxwell’s logging equipment. Both Maxwell and Saunders had been drinking. According to Walser, Saunders was carrying a short section of wood with several inches of twisted chain attached at one end, described as a “horse snubber,” which Saunders then gave to Maxwell. Maxwell, after stating that he was going to break Walser’s hands and fingers, and kill him, in fact hit Walser in the face with the horse snubber. Walser testified that the blow from Maxwell affected his vision and that he almost fell to the ground.

Walser then ran into the woods and made his way back to his father’s house. While in the woods, Walser could hear glass breaking on the truck and what sounded like a shot from a .22. Later, while still in the house, Walser observed Maxwell and Saunders drive up to the house and park for an unspecified length of time. The next morning, the El Camino was found pushed into a ditch — the door of the truck having been scarred by a grader blade. The windshield was broken out, the headlights and taillights were broken, all four tires had been slashed, the seats had been slashed, the plug wires were cut, the battery had been taken out and destroyed, and a box of tools and a spare tire were missing.

Maxwell conceded at trial that he had been drinking and was “pretty looped,” but maintained that he and Saunders found the Walser truck backed up to Maxwell’s logging equipment with David Walser apparently in the process of leaving. Walser, according to Maxwell, admitted stealing gas from Maxwell’s equipment — a fact Walser denied at trial. Maxwell denied having hit Walser, who he said was hit only once by Saunders, but admitted having a horse snubber in his possession, that he cursed and threatened to break Walser’s hands and “beat his fingers off,” and that he had damaged the truck. He could not remember having threatened to kill Walser.

Walser testified that he was unable to open his mouth even half way and could not chew for at least two weeks. His face was swollen and bruised. Walser made two trips to the local emergency room and had x-rays taken which failed to reveal any broken bones. His medical expenses were $190.00.

Maxwell’s sole contention is that the awards of compensatory and punitive damages were excessive and not supported by substantial evidence. With respect to his position that the compensatory damages award was excessive, Maxwell points out that other than the facts testified to by Walser concerning his injuries and medical expenses, Walser did not receive any prescription drugs, and even failed to keep an appointment with a physician. On the issue of punitive damages, he emphasizes that the award in this case would have little deterrent effect as he had acted out of anger, that Walser’s actual damages were minimal, that Walser should be found to have been partly to blame, and that the award failed to take into consideration Maxwell’s wealth — or lack thereof — a significant factor in past decisions by this court on the same issue.

The judgment entered of record reflects the trial court’s findings that Walser had undergone “physical pain and suffering and mental anguish” for which the compensatory damages at issue were awarded over and above Walser’s medical expenses. In his written findings of fact, the trial judge also determined that a preponderance of the evidence demonstrated that Maxwell’s actions were “extreme and outrageous, and so extreme in degree as to go beyond all possible bounds of decency and were atrocious and . . . intolerable in a civilized society.”

In Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984), this court was faced with factual circumstances in which the appellant, Pursley, had fired several shots at a vehicle driven by another who had failed to dim his headlights. Pursley argued that the amounts awarded by the jury for compensatory and punitive damages had been so great as to demonstrate passion and prejudice on the part of the jury and were such that they should shock the conscience of this court. We disagreed and found the appellant’s conduct to have been “completely unacceptable and repugnant to normal response in civilized society.” We stated that the amount of damages growing out of mental anguish is ordinarily left to the fact finder, and our decision affirmed an award of $367.28 damages to the vehicle, $20,000.00 for mental anguish damages, and $30,000.00 punitive damages. We further emphasized that punitive damages constitute a penalty and must be sufficient not only to deter similar conduct on the part of the same tortfeasor, but also to deter any others who might engage in similar conduct.

In Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983), we stated, “In each case we must study the proof, viewing it most favorably to the appellee, and decide the difficult question of whether the verdict is so great as to shock our conscience or to demonstrate passion or prejudice on the part of the trier of fact.” After due consideration of the proof in the case before us, we cannot say that the awards of compensatory and punitive damages were such that they either shocked the conscience of this court or demonstrated passion or prejudice on the part of the trial judge.

Affirmed.

Hickman, J., concurs.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I believe the damages are excessive for the reasons stated in my dissenting opinion in Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983).


author: Jack Holt, Jr., Chief Justice. Darrell Hickman, Justice, Tom Glaze, Justice,

text:
    David T. STROBBE v. STATE of Arkansas
    CR 87-143
    752 S.W.2d 29
    Supreme Court of Arkansas
    Opinion delivered June 20, 1988

      Sloan, Rubens, Peeples and Coleman, by: Kent J. Rubens, for appellant.

      Steve Clark, Att’y Gen., by: David B. Eberhard, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

David Strobbe was convicted of the murder of Marian Mullins and was sentenced to life in prison. Mullins was brutally beaten and run over by a vehicle on May 15, 1986, near West Memphis, Arkansas. The only eye witness to the murder (Michael Phillips) was the State’s main witness. His testimony played a major part in the State’s case.

Strobbe was arrested and charged with first degree murder on May 15,1986. The charge was then changed to capital murder with the underlying felony of rape. Before the case was submitted to the jury, the State reduced the underlying felony to attempted rape. The jury convicted Strobbe of first degree murder. His conviction must be reversed because the State withheld material evidence until after trial, which misled the defendant and the court.

Phillips, who was also arrested for the murder, made three pretrial written or recorded statements. At first, he denied knowing anything of the murder. Later the same day he admitted he was there, but denied he participated in any way. In a statement given the next day, he elaborated and said he watched Strobbe beat and rape Mrs. Mullins and then kill her by running over her with a vehicle. There was no indication in any of Phillips’ statements that he participated in the murder, and apparently he was never formally charged by the prosecuting attorney.

On the first or second day of the nine-day trial, during voir dire, Deputy Prosecuting Attorney John Fogleman and Deputy Sheriff Charles Walker interviewed Phillips and learned that he had helped place Mrs. Mullins in front of the vehicle before Strobbe ran over her. This information was not disclosed to the defense. Throughout the State’s voir dire, its questions implied that its main witness, Phillips, saw the crime but did not try to stop it or report it. The State did not indicate in any way that Phillips actually participated in the commission of the crime. While on the witness stand, Phillips testified that he helped place Mrs. Mullins in front of the vehicle so that Strobbe could run over her. This was the first time the defense learned that Phillips had changed his story. However, it was not until after trial that the defense learned that the State knew that Phillips had changed his story on the first or second day of voir dire, but that the State failed to disclose this fact to the defense.

During the discussion of instructions in chambers, a question arose about whether Phillips was an accomplice. Deputy Prosecuting Attorney Fogleman had this to say:

Your Honor, the State could not reasonably anticipate that the witness, Michael Phillips, who at no time before had admitted that he had helped put the body in front of the car would take the stand and admit on the stand that he in fact did help put the body in front of the car making him an accomplice.

The trial judge said:

Well, the Court’s going to give an instruction as a matter of law based upon his testimony that he is an accomplice, and that’s based upon his testimony before the Court that he assisted in placing the victim’s person before the left front wheel of the vehicle and based upon the medical examiner’s testimony. . . that she was alive at the time she was passed over by the vehicle ....

During closing arguments, Mr. Fogleman stated at one point:

Michael Phillips, by his own testimony, made himself an accomplice when he took that witness stand and admitted under oath on direct examination that he helped put the body in front of the car ....
Now as Officer Walker testified, that was not something that he had told before. He hadn’t told that before, and he got up here on the stand under oath and made himself an accomplice.

During his portion of the closing argument, Prosecuting Attorney Scott Hunter said:

Mr. Rubens said that what he got out of Michael Phillips about Michael Phillips placing Marian Mullins body in front of the car before being run over .... But the only evidence about that came out in this trial. It’s not on any of those previous statements, and it was brought out on direct examination. It was not brought out by Mr. Rubens [defense counsel] on cross examination.

After trial, the State admitted it had prior information as to Phillips’ participation in the crime charged as the deputy prosecuting attorney and the deputy sheriff had heard Phillips change his story on the first or second day of voir dire examination. The prosecuting attorney said he personally had not been aware of this fact when he conducted the voir dire and that Mr. Fogleman apparently had not thought it significant enough to tell him. However, the fact that the prosecutor himself did not know it is immaterial; what his deputy and the police officer knew were attributable to the State. Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979); Pridgeon v. State, 262 Ark. 428, 559 S.W.2d 4 (1977).

The trial judge ruled that because the information came out during trial and the defense could cross-examine Phillips, there had been no prejudice. The defense argues that it was denied the right to properly voir dire the jury and prepare its case, and that the State was guilty of prosecutorial misconduct. The defense contended all along that Phillips was the one who should have been charged with the crime and that Phillips had been promised immunity of some kind in return for his testimony. The State denied any deals or promises were made, but Phillips testified he thought he had a “free ride.”

The State first argues it was not required to produce the statement under A.R.Cr.P. Rule 17; second, that the court order was to furnish all written and recorded statements, and this was only an oral statement. The State also contends that the evidence was not exculpatory in nature and, therefore, did not have to be disclosed according to Brady v. Maryland, 373 U.S. 220 (1963). Finally, the State argues that the defense had not demonstrated a reasonable probability that the result would have been different had the defense had the information, which is required under United States v. Bagley, 473 U.S. 667 (1985). We disagree.

Strobbe filed a formal motion for discovery with the trial court which provided in part:

P. Copies of all documents, statements, and any other evidence including, but not limited to, a written summary of all oral evidence and statements, now known to the prosecution or which through due diligence may be learned from the investigating agents or witnesses in this case or persons interviewed in connection with the investigation, which is exculpatory in nature or which may lead to material which is exculpatory, or which tends to negate or mitigate the guilt of defendant or which would tend to reduce punishment therefor. In connection with the foregoing request defendant requests the prosecution to provide him with the names and current addresses of persons who possess or can provide such information together with any written or recorded statement or the substance of any oral statement by any person expected to give evidence at the trial and any other evidence now known or which through the exercise of due diligence could be learned by the prosecution which otherwise reflects upon the credibility, competency, bias or motive of the prosecution’s witnesses. [Emphasis added.]

In a hearing on the motion, with particular reference to paragraph “P,” Deputy Prosecutor Fogleman stated: “Anything that negates or mitigates, we will provide that. . . . [T] hat’s exculpatory materials. And we will do our duty in that regard, your Honor.” During the course of the same hearing, Strobbe called the court’s attention to paragraph “Z” of his motion, which stated:

Z. Defendant requests that each of the above be considered to be a continuing request and demand and that the prosecution, after complying with any Order or directive for discovery made or entered herein, be directed to promptly notify the defendant’s attorney of any additional documents, transcripts, reports, records, statements, property, tapes, physical evidence, identities or witnesses or any other evidence, items or information relevant, pertinent or material to the matters embraced within the four corners of the subject information, discovered by the prosecution in the time prior to the conclusion of this case, which is subject to or covered by the Order or directives of this Court.

The court responded to paragraph Z by stating: “Now Z, of course, the Court will treat these as a continuing request.” Deputy Prosecutor Fogleman responded, “Any information that we develop that’s subject to discovery will be provided to the defendant,” to which the court stated, “Alright.”

In short, the court noted that appellant’s motion for discovery would be treated as a continuing request, and the court accepted the prosecuting attorney’s assurance that any new information subject to discovery would be provided to the appellant. Certainly the impeachment evidence that Phillips was in fact a participant in the crime falls within the realm of information subject to discovery and the rule enunicated in Brady and Bagley, supra.

In a case similar to this one, the prosecuting attorney assured the trial judge that an offer of immunity had not been made to several witnesses when in fact his deputy prosecuting attorney had made such an offer. Pridgeon v. State, supra. When the truth came out during trial, a mistrial was requested and denied. We reversed, stating that even though the matter came out during trial and the witnesses could be cross-examined,

[A] ppellee overlooks the fact that appellant was denied the opportunity to pose questions to prospective jurors regarding whether they would consider offers of immunity in determining the witnesses’ credibility and, thereby, prevented effective use of that information in exercising his peremptory challenges, [citation omitted] Here the prejudice is heightened by the fact that the court, in the belief that no offer of immunity existed, had instructed the jury that no offers of immunity had been made, [citation omitted] ‘Fairness is a requirement of due process.’ [citation omitted]

Strobbe was similarly prejudiced in this case. From the very beginning of the trial, it was critical for the defense to know whether Phillips participated in the murder. During voir dire, both sides focused on the fact that the State’s case was based on the testimony of Phillips. The State knew its case rested primarily on this one witness, and they represented that he was merely there — that he only saw the crime. The defense was based on destroying the credibility of Phillips, and the State’s investigation was under attack before, during, and after the trial. Questions were raised about the failure to investigate or formally charge Phillips. The trial judge might have ruled differently in several instances if the truth had been known.

The State’s arguments pale when one considers the duty of Fogleman and Hunter as officers of the State and the court to come forth with critical evidence. Phillips’ statement was significant because it changed his role from that of a bystander to a participant and ultimately resulted in his being declared an accomplice to the murder as a matter of law. See David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). The information should have been made available as soon as it was known. The error consisted of the withholding of significant evidence which denied Strobbe a fair trial. For that reason the case is reversed and remanded for a new trial.

Several other issues are raised which might arise upon retrial. One witness for the State mentioned that Strobbe asked for a lawyer when he was questioned. Although a pretrial order prohibited the disclosure of this information, the State failed to tell its witnesses not to mention this fact during their testimony. Undoubtedly, this will not reoccur at a new trial.

The State introduced many photographs of the scene and the victim. Some, notably those taken at the autopsy of the victim’s head and parts of her body, are exceptionally grisly and sickening, which no ordinary person can view without being repulsed. It was not necessary that all these photographs be introduced into evidence. One photograph alone would have demonstrated that the victim’s head had been crushed. See Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). Upon retrial, the court should exclude exhibits 103, 104, 105, 106, 108 and 109.

Strobbe contends his statement should have been suppressed. We find that the statement was voluntary, and the rights form given complies with the requirements of Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987).

Finally, Strobbe argues that there was no substantial evidence to support his conviction. This argument is meritless. See Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983).

Reversed and remanded.

Purtle, J., not participating.

Hickman, Hays, Newbern, and Glaze, JJ., concur.

Darrell Hickman, Justice,

concurring. I agree the decision must be reversed but in my opinion the error consisted of officers of the state misrepresenting the truth, not merely remaining silent. Officer Walker and Deputy Prosecuting Attorney Fogleman knew Phillips had changed his story. In addition to the quoted statements in the majority opinion, a question and answer of Officer Walker is relevant. Officer Walker was asked, after Phillips had testified:

Q. Okay, and regarding Michael Phillips, had Mr. Phillips ever made a statement to you in any of those interviews to the effect that he assisted in putting Marian Mullins’ body in front of the vehicle?
A. No, sir, he did not.

The officers of the state led the judge and jury to believe that they did not know Phillips had changed his story. This was simply not true. The record speaks for itself on the actions of the officials.

Newbern, J., joins the concurrence.

Tom Glaze, Justice,

concurring. While I agree the state’s conduct improperly misled the appellant and we are required to reverse and remand this case, I do not agree that the trial court, upon retrial, must exclude the photographs marked as exhibits 103, 104, 105, 106, 108 and 109. I concede these particular photographs are gruesome, but this was an extremely gruesome, horrible crime. This court has held that a photograph is admissible when it tends to corroborate the testimony of a witness, show the nature or extent of the wounds or the savagery of an attack, or is useful to enable a witness to better understand the testimony. See Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). Here, the proffered photographs depict a brutal and savage crime — the victim was killed when her head was run over by a car.

In ruling the foregoing photographs inadmissible, the majority relies on Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). The Berry case, however, cited and relied on Gruzen and in no way overruled the foregoing principle embraced by the Gruzen court. The Berry decision merely reflected this court’s reaction in that case to the carte blanche acceptance of inflammatory photographs by the trial judge. Here, the trial judge did not automatically accept all the photographs of the victim, and, in fact, he excluded a number of photographs of the victim, four of which were of skull fragments.

The holding in Berry instructs a trial judge to do a careful analysis of the probative value of the photographs versus their prejudicial effect. As I pointed out above, the state was justified in introducing the repugnant photographs (which the majority now chooses to exclude) in order to prove the savagery of the act used to kill the victim. On the other hand, I see minimal prejudice caused by their introduction in view of the strong evidence — aside from or in addition to accomplice Phillips’ incriminating statements — that shows the appellant committed the crime. The following are examples of the other evidence bearing on appellant’s guilt: (1) Strobbe and Phillips were at Round One (a bar) the morning of the murder, and the victim was seen on top of Phillips’ car; (2) Strobbe told the owner of the bar that he was going to “get him some,” but then said he was kidding and that he was going home; (3) the victim was in the appellant’s car when he and Phillips left Round One, and the car drove off in the direction of Mound Road (where the body of the victim was found later that morning); (4) a tan shirt bearing the name “David” and a pencil with the name “David Strobbe” inscribed on it were found near the scene of the crime; (5) a similar shirt had been given to the appellant by his employer, and other evidence reflected that on the morning of the murder the appellant wore a similar shirt to the one found at the scene of the crime; (6) a beard net, similar to the one found in appellant’s car was found at the scene with blood on it; (7) blood that matched the characteristics of the victim’s blood was found inside and underneath appellant’s car, and on his tennis shoes; (8) dyed Caucasian-head hairs were found on the inside rim of the left rear tire on appellant’s car, on the lower bottom panel below the passenger side door, and on the tan shirt bearing the name “David” found at the crime scene; (9) in a statement to the police, appellant stated that he had not loaned his car to anyone; (10) appellant had scratch marks on his back.

This court has stated that the determination of the trial court will not be reversed absent an abuse of discretion. Berry, 290 Ark. 223, 718 S.W.2d 447. The trial judge in this cause analyzed the state’s photographs, excluded a number of them and admitted a large number of others. I am unwilling to say the judge abused his discretion in deciding the probative value of the photographs outweighed the prejudice they might have caused. Both the case law and the circumstances of this case support that judge’s ruling, and in my view, the majority is merely substituting its own discretion for that of the trial judge’s.

Hays, J., joins in this concurrence.


author: Darrell Hickman, Justice.

text:
    CHEM-ASH, INC. v. ARKANSAS POWER AND LIGHT CO.
    88-28
    751 S.W.2d 353
    Supreme Court of Arkansas
    Opinion delivered June 20, 1988

      Davidson Law Firm, Ltd., by: Charles Darwin Davidson and Clark W. Mason, for appellant.

      House, Wallace & Jewell, by: Philip E. Dixon-, and Janan E. Kemp, for appellee.
   Darrell Hickman, Justice.

This case involves the Uniform Arbitration Act. The trial court ordered arbitration of this dispute between Chem-Ash, Inc., the appellant, and AP&L, the appellee. Chem-Ash argues that its lawsuit was a tort action, not subject to arbitration; AP&L argues that the trial court’s order is not appealable, and even if it is, the suit filed by appellant was in fact a contract dispute and not one based in tort. It is undisputed that “personal injury or tort matters” cannot be the subject of arbitration.-See Ark. Code Ann. § 16-108-201 (1987). We find the order not appealable and do not reach the other question.

Generally, the facts are that Chem-Ash is in the business of marketing and disposing of a substance called fly ash, a byproduct of the coal furnaces at AP&L’s generating plants. Chem-Ash and AP&L entered into two contracts, which contained arbitration provisions, regarding the disposal of fly ash from AP&L’s plants at Redfield and Newark, Arkansas. AP&L terminated the contract on July 31,1987. Chem-Ash filed suit in Pulaski County Circuit Court for breach of contract and tort, alleging conversion and negligence. On AP&L’s motion, the trial court entered an order compelling arbitration, according to the parties’ agreement.

AP&L argues that the trial court’s order compelling arbitration is not appealable under the Uniform Arbitration Act. Chem-Ash argues that the order is appealable, relying on Rule 2(a) of the Arkansas Rules of Appellate Procedure, decisions from other jurisdictions, and our decision in Hoggard & Sons v. Russell Burial Assn., 255 Ark. 576, 501 S.W.2d 613 (1973).

The Uniform Arbitration Act speaks to the question of appeals in Ark. Code Ann. § 16-108-219 (1987), which provides an appeal may be taken from:

(1) An order denying an application to compel arbitration made under § 16-108-202;
(2) An order granting an application to stay arbitration made under § 16-108-202(b);
(3) An order confirming or denying confirmation of an award;
(4) An order modifying or correcting an award;
(5) An order vacating an award without directing a rehearing; or
(6) A judgment or decree entered pursuant to the provisions of this subchapter.

Clearly, if the legislature had intended to deny or delay arbitration by permitting an appeal from an order compelling arbitration, it would have said so. The act only states that an appeal can be taken from an order denying an application to compel arbitration. It is fundamental statutory construction law that the express designation of one thing may properly be construed to mean the exclusion of another. Venhaus v. Hale, 281 Ark. 390, 663 S.W.2d 930 (1984); Cook v. Arkansas-Missouri Power Corp., 209 Ark. 750, 192 S.W.2d 210 (1946). Also such a decision would be in accordance with the strong public policy favoring arbitration, which this court has consistently recognized. See Arkansas Dept. of Parks and Tourism v. Resort Managers, Inc., 294 Ark. 255, 743 S.W.2d 389 (1988).

Almost uniformly, states which have adopted the Uniform Arbitration Act have held that an order compelling arbitration is not appealable. See Annotation, Appealability of State Court’s Order or Decree Compelling or Refusing to Compel Arbitration, 6 A.L.R. 4th 652 (1981).

Even so, the trial court’s order must also be examined in light of Rule 2(a) of the Arkansas Rules of Appellate Procedure, which governs the appealability of lower court orders. The only provision of Rule 2(a) that would indicate the order compelling arbitration was final or appealable is 2(a)(2), which reads:

An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action;

We conclude that the trial court’s order did not in effect determine the action or discontinue it. The matter has merely been referred to arbitration and the appellant can obtain review of the arbitration decision and raise the very question presented here, whether the trial court was right in referring the case to arbitration. If we permit an appeal from every order referring a case to arbitration, the policy favoring arbitration would be frustrated, and we would be twice reviewing a case. For similar reasons, an order transferring a case from chancery to circuit court is not appealable. McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982).

We find that Hoggard, supra, is not controlling. While it has procedural similarities to the case before us, it involved the Administrative Procedure Act, not the Uniform Arbitration Act. In view of the clear intent of the legislature in § 16-108-219 that orders compelling arbitration not be appealable, and the fact that we find the order did not determine the action, prevent a judgment, or discontinue the action, we dismiss the appeal.

Appeal dismissed.

Purtle, J., not participating.


author: John I. Purtle, Justice.

text:
    Carl ROBINSON v. STATE of Arkansas
    CR 87-89
    752 S.W.2d 34
    Supreme Court of Arkansas
    Opinion delivered June 20, 1988

      Gibson & Deen, by: Charles S. Gibson, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

This is an appeal from the denial of post-conviction relief pursuant to A.R.Cr.P. Rule 37. For reversal the appellant contends that the trial court erred in finding that his guilty plea was voluntarily and intelligently made and in finding that the appellant was not denied the effective assistance of counsel. For the reasons stated below we affirm the ruling of the trial court.

The appellant and his brother, Vernon, were jointly charged with the capital felony murder of Alice Mosley, a neighbor of the Robinsons. Both brothers pled guilty and both were subsequently sentenced to life without parole. We affirmed the denial of Vernon Robinson’s request for Rule 37 relief in which he made similar challenges. Robinson v. State, 294 Ark. 97, 740 S.W.2d 918 (1987).

Vernon and Carl were represented separately by court-appointed counsel. During the time they were awaiting trial their mother and a friend sought the advice of independent counsel. The counsel retained by the mother was never entered in the record as counsel for either of the brothers. The third counsel made his own investigation and concluded that, in his opinion, it would be in the best interests of both defendants to enter a guilty plea in return for a sentence of life without parole. All counsel, and no doubt the appellant, were fearful that the death penalty might be imposed. The crime for which the brothers entered the guilty pleas was extremely gruesome in that the victim was beaten to death as well as sexually molested. This is the type of crime for which death sentences are frequently adjudged.

Appellant’s appointed attorney agreed with the independently retained counsel, and counsel for codefendant, that a guilty plea was appropriate in exchange for the state’s agreement not to seek the death penalty. The nature of the crime obviously made the appellant a likely candidate for the death penalty. The three attorneys and the codefendants all participated in the decision to enter the guilty pleas. This decision is a classic example of trial strategy. This court will not second-guess such decisions.

There is no requirement that the defendant himself must furnish the entire factual basis for accepting a guilty plea. Robinson v. State, supra. In the present case the brothers were jointly charged and their guilty pleas were entered at the same hearing. The record of this hearing clearly reflects that the guilty pleas of both brothers were voluntarily and intelligently made and that the guilty pleas were accepted by the trial court only after the court had fully complied with the requirements of A.R.Cr.P. Rule 24.4 (1987). Both the brothers stated they understood the nature of the charges and the possible penalties. Both brothers furnished sufficient factual details to support acceptance of the guilty pleas even though each stated that it was the other who had actually committed parts of the criminal act. Both defendants admitted in open court that, at the least, each was the accomplice of the other.

The deciding factor in this case, however, is that there is not even an allegation that Carl Robinson’s attorney of record was ineffective. It would not matter had counsel retained by the mother not performed up to expectations or had even been “ineffective..” He was not counsel of record and did not participate in any of the proceedings before the trial court.

After entry of the guilty plea the trial judge asked the appellant if he was satisfied with his appointed counsel and the appellant responded that he was. After examining the record and applying the standard for ineffective assistance set out in Strickland v. Washington, 466 U.S. 688 (1984), wehaveconcludedthat the appellant has failed to establish his allegation of ineffective assistance of counsel or his allegation that he did not intelligently and voluntarily enter his guilty plea.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Bruce Joseph TAYLOR v. STATE of Arkansas
    CR 88-21
    752 S.W.2d 2
    Supreme Court of Arkansas
    Opinion delivered June 20, 1988

      William R. Simpson, Jr., Public Defender, and Stejf Padilla, Deputy Public Defender, by: Bret Qualls, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jolliff, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was convicted of rape and aggravated robbery. He argues that the evidence was insufficient to sustain the convictions. The argument is without merit, and we affirm the judgments of conviction.

The prosecutrix testified that at about 8:30 p.m., on March 31,1987, she left the Pizza Inn on Rodney Parham Road in Little Rock to deliver pizza to a customer who had placed his order by telephone. She drove to the address she had been given, went to the front door and knocked, but no one answered. She went back to her truck, and as she was getting in, she looked up and saw a man running toward her. She thought it was the customer who had ordered the pizza, so she waited for him.

When the man got to the front of her delivery truck, she realized that he had a mask on his forehead. As he got beside the door on the driver’s side he pulled the mask down over his face. He whipped out a sawed-off shotgun which he had concealed under his jacket. He pointed the shotgun at her face and demanded money, which she gave him. He then told her to lie down on the ground and said that he would blow her brains out if she screamed. He then raped her.

After her assailant left, the prosecutrix ran to a neighboring house, and the police were called. Soon afterwards she was interviewed by a detective. Two or three weeks later the detective showed her a group of mug shots which did not include the appellant, and asked if her assailant’s picture was in the group. She said no. Two weeks later he showed her another group of mug shots, which included a picture of the appellant, and she positively identified the appellant as the person who robbed and raped her.

At trial she testified that she was absolutely certain that the appellant was her assailant. She further testified that she could identify him because at the time of the attack, the area was well lit by street lights, by her headlights, and by the Pizza Inn sign on top of her truck.

On appeal, we review the evidence in the light most favorable to the appellee, and the judgment will be affirmed if there is substantial evidence to support the verdict. Substantial evidence must be of sufficient force and character to compel a conclusion one way or the other, passing beyond mere suspicion or conjecture. Coleman v. State, 283 Ark. 359, 676 S.W.2d 736 (1984). We have repeatedly held that a rape victim’s testimony satisfies the requirement that there be substantial evidence that the defendant committed the crime. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988); Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (1987). Further, it is the jury’s province to judge the credibility of witnesses, and we will not disturb their judgment. Lewis, supra.

In this case the prosecutrix’s identification of the appellant as the person who robbed and raped her was unequivocal. There was substantial evidence to support the verdict.

Affirmed.


author: Steele Hays, Justice.

text:
    David COURTNEY v. Wayne COURTNEY, Administrator of the Estate of Richard Courtney, Deceased
    88-55
    752 S.W.2d 40
    Supreme Court of Arkansas
    Opinion delivered June 20, 1988

      Sharpe, Beavers & Routon, by; Stephen A. Routon, for appellant.

      Easley & Hicky, by: Preston G. Hicky, for appellee.
   Steele Hays, Justice.

This is a dispute over the ownership of funds on deposit in more than one name. David Courtney has appealed from an order of the St. Francis Probate Court holding that two certificates of deposit and a bank account in the names of Richard Courtney and David Courtney are assets of the estate of Richard Courtney, deceased. The trial court rejected David Courtney’s claims that he and Richard Courtney were partners and the funds belong to him as survivor.

Richard Courtney died intestate in April 1986 survived by his wife and three sons, Dale, Wayne and David. Wayne was appointed administrator. The estate consisted largely of a number of checking accounts and certificates of deposits, some in the name of Richard Courtney alone and some in the names of Richard Courtney and one or more other members of the family. When a disagreement arose over accounts on which David Courtney’s name appeared, the administrator obtained an order from the probate court “freezing” all accounts until a hearing could be held.

Three accounts are in dispute: a checking account with Planters Bank & Trust Co. in the names of Richard Courtney and David Courtney, opened in 1981, and two certificates of deposit with First National Bank of Eastern Arkansas, both in the names of Richard Courtney and David Courtney, one dated October 13, 1982 in the amount of $10,000, and the other dated April 4,1986 in the amount of $2,500. None of the accounts purport to be held in joint tenancy with right of survivorship, or payable on death to the survivor.

Following the hearing the probate judge determined that the funds belonged to the estate and that there was a failure of proof that David Courtney and his father were partners. On appeal, David Courtney argues the trial court misinterpreted Ark. Code Ann. § 23-32-1005 (1987) [Ark. Stat. Ann. § 67-552 (Supp. 1985)], and thus erred in finding that the monies were solely the property of the estate and erred in refusing to find the elements of a partnership between Richard Courtney and David Courtney. With one modification we affirm the trial court.

I

The partnership issue can be quickly disposed of, as we attach no greater weight to the proof of partnership than did the trial court. We review probate cases de novo and affirm unless the findings are clearly against the preponderance of the evidence. Reddick v. Blair, 285 Ark. 446, 688 S.W.2d 286 (1985); Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984).

The evidence of a partnership was notably lacking in any documentation or persuasive proof as to formation, division of income and losses, use of a partnership name, the specific nature of the enterprise, or any other of the indicia of partnership. The proof consisted entirely of David Courtney’s conclusory assertions that he and his father worked together as partners. The trial court found the testimony unconvincing and we cannot say the preponderance of the evidence was clearly to the contrary.

David Courtney contends that since his testimony that he and his father were partners was undisputed, it was error for the trial court to find that the elements of a partnership were not proved. But that contention overlooks the settled rule that the testimony of an interested party is never undisputed, even though unchallenged. Hamby v. Hankins, 275 Ark. 385, 630 S.W.2d 37 (1982); Hurley Pickett Lake Farms, Inc. v. Sullivan, 245 Ark. 709, 434 S.W.2d 88 (1968).

II

Turning to the three accounts, we again point out that nothing connected with the CD’s or the checking account indicated the nature of the accounts as to joint tenancy, tenancy in common, or designation for payment in the event of death of one of the named depositors. That being so, they might at first appear to come within the language of Ark. Code Ann. § 23-32-1005(1)(A) (1987), (Act 78 of 1965), which reads:

Unless a written designation to the contrary is made to the banking institution or federally or state-chartered savings and loan association, when a deposit has been made or a certificate of deposit purchased in the names of two (2) or more persons and in form to be paid to any of the persons so named, or the survivors of them, the deposit or certificate of deposit and any additions thereto made by any of the persons named in the account shall become the property of those persons as joint tenants with right of survivorship.

However, the present wording of subparagraph (1)(A) was incorporated by an amendment, Act 843 of 1983, and we have held the amendment does not apply to deposits established prior to the effective date of Act 843. See Martin v. First Security Bank, 279 Ark. 273, 651 S.W.2d 70 (1983). Since the checking account and the $10,000 CD both antecede Act 843, they come within the earlier wording of § 23-32-1005(l)(A), that is, subparagraph (a) of Ark. Stat. Ann. § 67-552 (Repl. 1980):

If the person opening such account, or purchasing such certificate of deposit, designates in writing to the banking institution that the account or the certificate of deposit is to be held in “joint tenancy” or in “joint tenancy with right of survivorship”, or that the account or certificates of deposit shall be payable to the survivor or survivors of the persons named in such account or certificate of deposit, then such account or certificate of deposit and all additions thereto shall be the property of such persons as joint tenants with right of survivorship. Such accounts or certificates of deposit may be paid to or on the order of any one [ 1 ] of such persons during their lifetime, unless a contrary written designation is given to the banking institution, or to or on the order of any one [1] of the survivors of them after the death of any one [1] or more of them. The opening of the account or the purchase of the certificate of deposit in such form shall be conclusive evidence in any action or proceeding to which either the association or surviving party or parties is a party, of the intention of all of the parties to the account or certificate of deposit to vest title to such account or certificate of deposit and the additions thereto in such survivor or survivors. No banking institution paying any survivor in accordance with the provisions of this section shall thereby be liable for any estate, inheritance or succession taxes which may be due this State.

Because the checking account and the $10,000 CD come within § 67-552 and no writing was signed designating these accounts as joint tenancy with right of survivorship, the trial court was correct in holding the proceeds from these accounts belong to Richard Courtney’s estate. Estate of Pettyjohn v. Ballard, 282 Ark. 222, 667 S.W.2d 657 (1984). However, because it was purchased after Act 843, the $2,500 CD comes within the language of subparagraph (1)(A), hence, it is payable to the survivor, David Courtney, since no written designation to the contrary appears.

David Courtney maintains the trial court erred in relying on Estate of Pettyjohn v. Ballard, supra, because in Pettyjohn the decedent opened the account, whereas here, “it is absolutely undisputed” that he, David Courtney, opened the account and purchased the two CD’s. There are two answers. First, nothing in our statutes or cases suggests that who opens the account governs its disposition, though that fact may be relevant to some issue. Second, appellant again mistakenly characterizes his own testimony as “undisputed,” which is not now the law and has not been the law from the earliest. Skillern v. Baker, 82 Ark. 86 (1909). While David Courtney testified that he alone opened the checking account and purchased the CD’s, that testimony stands alone and, as we have seen, is disputed as a matter of law. Mr. Donald Fogg, an officer of the First National Bank, testified that while he recognized his signature on the $10,000 CD purchased in 1981, he plainly stated he could remember nothing about the circumstances. He was not asked about the other CD or the checking account.

Appellant’s other argument is that since the accounts had no designation whatever as to the type of account being opened, their disposition is determined, not under subparagraph (1)(A) of § 23-32-1005, but under subparagraph (5), which reads:

If an account is opened or a certificate of deposit is purchased in the name of two (2) or more persons, whether as joint tenants, tenants by the entirety, tenants in common, or otherwise, a banking institution or federally or state-chartered savings and loan association shall pay withdrawal requests, accept pledges of the account or certificate of deposit, and otherwise deal in any manner with the account or certificate of deposit. This may be done upon the direction of any one (1) of the persons named therein, whether the other persons named in the account or certificate of deposit are living or not, unless one (1) of the persons named therein shall, by written instructions delivered to the banking institution or federally or state-chartered savings and loan association, designate that the signature of more than one (1) person shall be required to deal with the account or certificate of deposit. [Emphasis supplied.]

We disagree with that contention. Subsection (5) does not confer ownership or survivorship status on a party who would otherwise not have such status. The purpose is merely to absolve the bank of liability in the event of withdrawal by one of the individuals on an account in more than one name. This conclusion is obvious, as the list under this provision includes tenants in common, where there is no right of survivorship. If we were to interpret this subsection otherwise, a tenant in common could convert the account into a joint tenancy by merely withdrawing the funds at the other tenant’s death. Such a result was clearly not intended by the legislature. See generally, Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988).

For the reasons stated we agree with the trial court with the exception of the $2,500 CD, which is payable to the survivor, David Courtney, in accordance with § 23-32-1005(l)(A).

AFFIRMED as modified.