author: George Rose Smith, Justice.

text:
    Joseph M. ASH et al. v. STATE of Arkansas
    CR 86-168
    718 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered November 10, 1986

      Pruitt & Hodnett, by: Ray Hodnett, for appellants.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

Act 862 of 1981 prohibits persons from promoting dog fighting, engaging in dog fighting, being present at a dog fight, or committing various acts connected with dog fighting. Ark. Stat. Ann. §§ 41-2918.1 and - 2918.2 (Supp. 1985). At about 10:00 p.m. on May 10,1985, after a search warrant had been obtained, ten law enforcement officers entered a building behind the residence of Darryl and Winifred Hook in Fort Smith. A dog fight between two American pit bull terriers was in progress. Fifteen persons were present. The police arrested all of them except the Hooks’ 12-year-old son, who was video-taping the dog fight. The police took possession of the videotape and of a copy of the rules for dog fighting, which was found in a filing cabinet in the building.

All of the persons arrested, except Mrs. Hook, were charged with witnessing a dog fight presented as a public spectacle or with being present at a dog fight. Mrs. Hook was charged with promoting or engaging in dog fighting or possessing a dog for that purpose. Darryl Hook was among those arrested, but he was charged separately and is not a party to this case. The defense offered no evidence. The jury found all these appellants guilty and assessed a $3,000 fine against each of them except Mrs. Hook, who was fined $5,000. The Court of Appeals transferred the case to us as presenting an issue of construing the word “promotes” in the statute. Rule 29(l)(c).

The raided “garage” area, as described in the testimony and as shown by the video-tape, had been converted into an arena for dog fighting. The rules comprise five single-spaced typewritten pages. The rules provide that the pit is to be an enclosure not less than 14 feet each way, with sides 30 inches high and a carpeted floor. The pit in the Hooks’ garage appears to have been in general conformity with the rules. The rules contemplate that each of the two dogs will be in the pit with its handler. The referee, if one is present, is also in the pit. At a signal from the referee the dogs begin to fight. The term “scratch” is not defined. One dog must scratch first; after that they scratch alternately until one fails to scratch and thereby loses the contest. No dog is required or allowed to “scratch to a dead dog”; in that event the live dog is the winner. There is a detailed rule for determining the winner or declaring a draw if the dogs quit fighting, though the handlers may allow the fight to continue. A dog that jumps out of the pit is automatically the loser.

The proof leaves no doubt that when the garage area was raided there was a dog fight in progress, and all the appellants except Mrs. Hook were present. Consequently counsel do not even attempt to argue that the evidence, if admissible, was not sufficient as to all the appellants except Mrs. Hook. The only argument made in behalf of the others is that the copy of the rules was not admissible, because the State did not show that the appellants were aware of its existence. The copy, however, was lawfully seized by the officers as being incidental to the arrests, as being within the immediate control at least of Darryl Hook, and as being evidence of the offense. Rules of Criminal Procedure, Rules 10.2(a)(i) and 12.1(d); Moore v.State, 244 Ark. 1197, 429 S.W.2d 122 (1968), cert. denied, 393 U.S. 1063 (1969). The rules were relevant to the case, explaining the purpose of the pit and details shown by the video-tape. We have no hesitancy in affirming the convictions of those present during the dog fight.

Mrs. Hook’s case is not equally as open-and-shut, but the proof as a whole leaves us with no doubt about its sufficiency to support the verdict. The State introduced the sworn testimony she had given in connection with her husband’s trial; the jury was of course not informed of that setting for the testimony. She said she and her husband had formerly lived in California, where dog fighting was then legal. They fought the passage of a law to make it illegal, but the law was passed. They left California for that reason. “We moved here because there [were] no laws against dog fighting.” She denied knowing that dog fighting had been made illegal in Arkansas. The Hooks had lived at the residence in Fort Smith for seven years when she testified. She said she and her husband had raised pit bulls for over ten years and owned six of the dogs at the time she testified. (The testimony and the photographs in the record show that the kennel building is of concrete block construction, with a concrete floor. It has a roof over it. There are 12 separate enclosures for dogs, in two stories having six pens each. The front of each enclosure consists of chain-link fencing attached to steel posts set in concrete. The entire structure is enclosed by a chain-link fence.)

Mrs. Hook testified that the pit, which takes up most of the garage space in the other outbuilding, was made for dog “rolling,” by which two dogs are placed together to see if they will fight. “If they do, then you just don’t let them.” She conceded that a pit is not needed for dog rolling; the dogs could just be put on the ground. (The pit is apparently also a permanent installation, not put together for the one evening. In addition to the garage space, that outbuilding also contains a storage room and an apartment with two bedrooms and two baths. One bath is readily accessible to the pit area via the storage room. That accessibility would be of importance if the owners of the dogs agreed to abide strictly by the rules, which have detailed instructions for washing and drying each dog immediately before the dogs are put in the pit to fight.)

Mrs. Hook testified that on the morning of the day of the raid, May 10, she arose as usual at about seven o’clock. At some time later she left to report for work at her job at 3:30 p.m. Before she left five or six people had arrived from “different places,” some of them bringing dogs with them. When asked if the people were there to fight dogs, she replied, “I don’t know,” which was her usual response to questions about her awareness of dog fighting on the premises. She saw nothing wrong about dog fighting or about her 12-year-old son’s having operated the video camera during the fight. She said she and her husband owned the dogs they had and that all four members of the family helped take care of the animals. The dogs like to exercise and would run for hours on a treadmill. At one point she did say about her husband, “He has fought dogs.”

On that day Mrs. Hook returned home shortly before 11:00 p.m., after the raid and arrests had taken place. When she got home, the people who had brought their dogs before she left were still there and were among those arrested. She herself was arrested when she got home. It was not unusual, she testified, for numbers of people to show up at her house, but as far as she knew they were not there to fight dogs. She said that was the first time she even knew of dogs having been fought there.

The argument on appeal is that since Mrs. Hook was away during the dog fight, the State’s proof was not sufficient to support her conviction. That, however, depends upon whether the State produced substantial evidence to show her to be guilty of having “promoted” dog fighting, even though she did not engage in it that night. The word promote means to “further; encourage; advance.” Webster’s New International Dictionary (2d ed. 1934). The court included in its instructions to the jury two that are now pertinent: AMCI 103 explained that the jurors were not required to set aside their common knowledge, but had the right to consider the evidence in the light of their own observations and experiences in the affairs of life. AMCI 104 told the jurors that they were the sole judges of the witnesses’ credibility and specified some of the matters to be considered in determining the truth or falsity of the witness’s testimony.

The Hooks had admittedly come to Arkansas partly because dog fighting was then legal here. Mrs. Hook, no matter how inactively she may have participated in the dog fighting, knew that a structure had been built in the back yard for the specific purpose of housing pit bull dogs, with accommodations to contain dogs other than their own. She was familiar with the pit and knew it could be used for dog fighting. Both the kennels and the arena were of a permanent nature, solidly built. Mrs. Hook knew that her husband had fought dogs; she herself saw nothing wrong with dog fighting. She realized that numbers of people came to the house from time to time and brought pit bull terriers with them. She must have known that something was going on to attract those visitors. She and her children had helped to take care of the dogs, washing them and feeding them. In short, from the evidence presented the jury could reasonably have concluded that Mrs. Hook was aware that on property owned by her and her husband an arena had been built for the specific purpose of clandestine dog fighting and that she was aware that it was being so used. The jury could find that she “promoted” dog fighting. The direct and circumstantial evidence to support the jury’s verdict is more than sufficient to meet the test of substantiality.

Affirmed.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    COMMITTEE FOR UTILITY TRIMMING, INC. v. Sylvia HAMILTON, County Clerk
    86-236
    718 S.W.2d 933
    Supreme Court of Arkansas
    Opinion delivered November 10, 1986

      R. David Lewis, for appellant.

      Robert D. Ridgeway, Jr., for appellee.

      Wood, Smith & Schnipper, and Friday, Eldredge & Clark, for Intervenor-Appellee Arkansas Power & Light Company.
   Darrell Hickman, Justice.

This case was advanced and we decided to affirm the trial court on Friday, October 31,1986, with the opinion to follow. This is the opinion.

The appellant collected signatures to get a proposal on the general election ballot in Garland County called the Garland County Electric Initiative. The ballot title reads:

An ordinance revoking the monopolistic privileges and exclusive franchise granted to a private corporation; To establish a county administrative board to act as a body politic with corporate powers to acquire and operate the means of producing and distributing hydroelectric power in Garland County, Arkansas; And for other purposes.

Sylvia Hamilton, the county clerk and appellee, rejected the petition on September 8,1986, because of forgery of some names, non-registration of some signatories and illegibility of some signatures which reduced the number of signatures below the required amount.

The appellant filed a petition for review in the Garland County Chancery Court, and the appellee and intervenor, Arkansas Power and Light, challenged the capacity of the appellant to sue. It was not disputed that the Committee for Utility Trimming, Inc., had not been incorporated according to law. The trial judge ruled, quite properly, that a corporation not in existence could not initiate a law suit. That is the law. In Sulphur Springs Recreational Park v. City of Camden, 247 Ark. 713, 447 S.W.2d 844 (1969), we affirmed a trial court’s dismissal of a complaint, because the plaintiffs corporate charter was not in existence when the suit was filed.

Corporate existence begins in Arkansas when the articles of incorporation are filed with the secretary of state. Ark. Stat. Ann. § 64-117 (Repl. 1980). A suit must be instituted by a person, natural or artificial. Fausett & Co. v. Bogard, 285 Ark. 124, 685 S.W.2d 153 (1985). Neither existed here. Theappellant did not exist as a corporation when it filed this suit. The appellant attempted to correct this oversight too late — after the time had expired for contesting a rejection of a petition.

The appellant argues that the court should have permitted the appellant to proceed as a partnership or a de facto corporation; also it is argued that the 15-day time limit in Ark. Stat. Ann. § 17-4011 [10] (9) (Repl. 1980) is unconstitutional in violation of Amendment 7 to the Arkansas Constitution. These arguments are all meritless.

The simple fact is that the appellant elected to proceed as a corporation and failed to perform the most elementary act necessary to become a corporation — file its articles.

Furthermore, any taxpayer could have filed this petition, but none did. The appellant’s oversight cannot be brushed aside, cases overruled and procedures ignored just to accommodate one litigant.

Since the corporation did not exist legally, it could not file a complaint in court under our law, and such a complaint was properly dismissed.

The appellant asked the chancellor to recuse himself because he had been a college roommate of Judge Tom Glaze, an opponent to the appellant’s lawyer in a political race. It was also mentioned that Sheffield Nelson and Larry Wallace had solicited campaign funds for Judge Tom Glaze and were with the law firm which has historically represented Arkansas Power and Light.

We do not presume bias and prejudice, and there is no evidence in the record that the chancellor, Gayle Ford, had any actual bias, nor that his continuance in the case would be an appearance of impropriety. Friendship with a member of the bar is not a ground for recusal. None of these people were parties to this suit or represented any interested party.

Affirmed.


author: John I. Purtle, Justice.

text:
    Benjamin WILLIAMS and Randolph WALLACE v. STATE of Arkansas
    CR 86-118
    718 S.W.2d 935
    Supreme Court of Arkansas
    Opinion delivered November 10, 1986

      William C. McArthur, for appellant Benjamin Williams.

      Paul Johnson, for appellant Randolph Wallace.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

On September 29, and 30, 1983, the appellants and two other individuals, Allen Bruce Woods and Stephana Bridges, were charged with an aggravated robbery that occurred on September 28. Both appellants Williams and Wallace were released on bond on November 28,1983. The state filed amended informations charging the appellants as habitual offenders and also filed a motion to join the defendants. Both of the appellants moved for continuances.

On April 30,1984, the first trial of the appellants and Woods commenced, but before the first witness was sworn it was discovered that the state had taken a statement from codefendant Bridges, who was not being tried with the three men. This information had not been previously divulged to the defense. On motion of the defense, the case was “continued.” By order of the trial court dated March 15, 1985, the court granted the defendants’ motion for a mistrial in the April 30, 1984 proceedings.

The second trial commenced on August 27, 1984. Both appellants moved to dismiss, asserting that forcing them to trial constituted double jeopardy. The court denied the motion. This trial also resulted in a mistrial after it became apparent that the state had not revealed to the defense that a witness to the robbery had viewed a photo lineup and had failed to identify any of the defendants. Notice of appeal of the denial of the double jeopardy motion was filed by the appellants that same day.

On November 26, 1984, the appellants filed a motion to extend the time to lodge the record on appeal until January 24, 1985. The trial court granted this motion. The record was never filed.

On January 2, 1985, the appellants again filed a motion to dismiss, asserting that forcing them to trial constituted double jeopardy. The trial court refused to consider this motion because “the court considers these cases on appeal.”

In early October, 1985, the appellants once again filed motions to dismiss on double jeopardy grounds. The appellants also asserted a violation of their right to a speedy trial under Arkansas Rules of Criminal Procedure Rule 28.1. These motions were denied by the trial court by an order dated October 23,1985. It is from this order that the present appeal is taken.

On October 21,1985, this Court handed down our decision in Woods v. State, 287 Ark. 212, 697 S.W.2d 890 (1985), wherein we held that co-defendant Woods had not been twice placed in jeopardy. The appellants concede that their arguments on this point were decided adversely to them in Woods.

The only issue in this appeal, therefore, is whether the appellants were denied a speedy trial as required by A.R.Cr.P. Rule 28.1. Jurisdiction is in the Supreme Court pursuant to A.R.Cr.P. Rule 28.1(d) and Supreme Court Rules 29(l)(f) and 29(1) (k).

In accordance with A.R.Cr.P. Rule 28.2, the time for trial commences to run, without demand by the defendant, from the date of the information or arrest, whichever is earlier. Further, if the defendant is to be retried, following a mistrial, the time for trial shall commence running anew from the date of the mistrial. A.R.Cr.P. 28.2(c). Periods of delay resulting from continuances granted at the request of the defendant and interlocutory appeals are excluded in computing the time for trial. A.R.Cr.P. Rule 28.3. The burden is upon the state to show good cause for delay if the accused is not brought to trial within the time limitations established in our speedy trial rules. Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985).

Had no appeal been taken from the order denying the double jeopardy motions on the day of the second mistrial, the time would have commenced running again on that date, August 27, 1984. However, the period of delay resulting from this interlocutory appeal, August 27,1984, to January 24,1985, must be excluded from the time used to compute the speedy trial issue. Starting anew from the latter date, it is obvious that less than one year had elapsed by October 23, 1985, the date the order being appealed from here was filed.

From the foregoing timetable, it is clear that the appellants were not denied their right to a speedy trial. The time during which the interlocutory appeal was pending must be excluded. It would be unfair to the state to reduce the excludable period to anything less than the last date on which the appellants could have lodged the record on appeal. The burden is upon the state to prove justification for any delay beyond the established rules. Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982). It is apparent from the record that the delays were the result of the action of the appellants. Therefore, the trial court correctly overruled the motions to dismiss for lack of a speedy trial.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Joe Samuel BROWN v. STATE of Arkansas
    CR 86-8
    718 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered November 10, 1986

      Richard L. Proctor, P.A., by: James R. McCauley, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

On November 10, 1981, the appellant was charged with aggravated robbery and terroristic threatening. On January 7,198.2, he pleaded guilty on the aggravated robbery charge, and on January 21, 1982, he pleaded guilty on the terroristic threatening charge. He was immediately sentenced to serve a term of twenty-five years for the aggravated robbery and five years for the terroristic threatening. He did not appeal. On June 14,1985, more than three years after his sentencing and commitment, he filed a motion to vacate his pleas of guilty. The trial court reached the correct result in denying that motion. A motion to withdraw a plea of guilty, made pursuant to A.R.Cr.P. Rule 26.1, must be made before sentencing. Pennington v. State, 286 Ark. 503, 697 S.W.2d 85 (1985). Since the appellant did not file his motion to vacate before sentencing, he was not entitled to any relief under that rule. The trial court could have treated the matter as a Rule 37 petition, regardless of its title, and ruled on the merits of the petition. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984). However, the trial court did not rule on the merits of the petition.

At a later date, August 20, 1985, the appellant filed a Rule 37 petition alleging that he was entitled to post-conviction relief. In a letter signed by the trial judge’s law clerk, the appellant was later informed, “Your second petition for post-conviction relief under Rule 37 is denied for the same reasons as all previous petitions. . . .” The appellant contends that the purported letter-opinion of the law clerk is invalid. The appellant’s argument is valid. A trial judge simply may not delegate his judicial authority to a law clerk. Arkansas Constitution art. 7, § 1; Ark. Stat. Ann. § 22-333.25 (Supp. 1985). The General Assembly has not attempted to give law clerks the power to decide cases. Ark. Stat. Ann. §§ 22-361.1, 22-361.2, and 22-361.3 (Supp. 1985).

Since the trial court has not decided the case, we must remand for further proceedings.

Appeal dismissed and cause remanded.


text:
    William H. LEWIS v. INDUSTRIAL HEATING & PLUMBING OF ST. JOSEPH, MO., a/k/a IHP INDUSTRIAL, INC., and Wayne FUNDERBURG, Individually
    86-91
    718 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered November 10, 1986

      The McMath Law Firm, P.A., by: James Bruce McMath, for appellant.

      Bailey, Trimble & Sellars, by: Rick Sellars, for appellees.
   Robert H. Dudley, Justice.

This case presents a question in the law of torts. The Arkansas Power and Light Company contracted with defendant Industrial Heating and Plumbing Company of St. Joseph, Missouri for construction work at the White Bluff Steam Electric Station at Redfield. Defendant Industrial, in turn, subcontracted part of the project to Melvin Shirley, who did not have workers’ compensation insurance. Plaintiff was employed by Shirley and was injured in the course of his employment. Defendant Funderburg was employed as a superintendent of defendant Industrial and instructed plaintiff to dispose of a flammable substance in a manner which led to his injury. Defendant Industrial’s carrier paid workers’ compensation benefits to plaintiff pursuant to Ark. Stat. Ann. § 81-1306 (Repl. 1976), which makes the prime contractor liable for compensation to employees when a subcontractor fails to secure compensation insurance. Plaintiff filed this suit in tort against defendants Industrial and Funderburg. The gravamen of the complaint is that Funderburg, Industrial’s superintendent, was negligent in giving instructions about disposing of the flammable substance. The trial court granted summary judgments in favor of each defendant on the basis that each was afforded immunity under the exclusive remedies provision of the workers’ compensation act. We affirm.

Plaintiff (appellant) asks us to hold that defendant Industrial is a mere guarantor of workers’ compensation benefits and is not a statutory employer who is entitled to immunity for its tort or those of its employees committed in the course and scope of employment. We have already ruled adversely to plaintiff on this issue.

In Rowe v. Druyvesteyn Construction Co., 253 Ark. 67, 484 S.W.2d 512 (1972), we held that when the subcontractor carries no compensation insurance, the prime contractor is made a statutory employer and has the same immunity as a regular employer. We note that Professor Larson, in his work Workmen’s Compensation Law, Volume 2A, § 72.31(a), approves of the theory and result in this situation. We decline to overrule Rowe.

Appellant next contends the trial court erred in holding that defendant Funderburg was immune from tort liability. The trial court was correct. Funderburg was sued in his capacity as superintendent. In Simmons First National Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415 (1985), we explained, “since an employer is immune under the statutes from a negligent failure to provide employees with a safe place to work, the same immunity protects supervisory employees when their general duties involve the overseeing and discharging of that same responsibility.”

Affirmed.


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

text:
    Louis T. MARTIN, Jr. v. STATE of Arkansas
    CR 86-83
    718 S.W.2d 938
    Supreme Court of Arkansas
    Opinion delivered November 10, 1986

      William R. Simpson, Jr., Public Defender, and Thomas B. DeVine, III, Deputy Public Defender, by: Donald K. Campbell, 111, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of first degree murder and first degree battery. We affirm the murder conviction but reverse the battery conviction.

On the afternoon of the murder, appellant, his girlfriend, her mother and brother, and a man named Lonnie drove from North Little Rock to Sweet Home to pick up a voucher for milk. Upon their arrival in Sweet Home, appellant asked to get out of the car at the end of Neely Road. As he was getting out he asked Lonnie to pick him up in ten to fifteen minutes on the way back to North Little Rock. Mike Callahan, who was murdered by appellant, was among several persons who were gathered on Neely Road at that time. Those who witnessed the murder testified, in general, that appellant and victim Callahan went behind a vacant building for a short period of time, and when they came back around to the front yard, they were arguing. They were still arguing when Lonnie returned to pick up appellant. Appellant walked to Lonnie’s car, which was parked in the street, took a gun from under the seat, went back to the victim in the yard, and twice shot him.

Appellant’s version of the occurrence was that in the weeks and days preceding the shooting, the victim had placed a bomb in his car, had pointed a gun at him, had shot at him, and had threatened to kill him. Appellant knew that the victim sometimes carried a gun. On the day of the shooting, the two of them were arguing when the victim picked up a brick in his right hand, drew back, and said, “I will kill you.” His left hand was in his clothes as if he had a gun. At that time, Lonnie returned with the car and drove to a point in the road about ten yards away. Appellant walked away from the victim, went to the car, reached under the back seat, got a pistol, walked back to the victim, who still had the brick in his right hand with his left hand in his clothes, and they exchanged words. “[H]e raised the brick in the air like he was going to hit me, so I pulled the pistol and I shot below his waist line.” Appellant testified that the second shot into the victim was accidental. The shooting of Mike Callahan resulted in the murder charge.

The appellant did not testify that the victim followed him to the car when he went to get his pistol, nor did he testify that the victim made any additional threats while appellant was at the car.

All of the witnesses agree that after Callahan had been murdered appellant started walking away, and, when he had gone about twenty yards, Dovie Woods aimed a pistol at his back. Someone warned appellant, who then turned around and shot Ms. Woods. She testified that if she had more time she would have shot appellant. The shooting of Dovie Woods resulted in the battery charge.

Appellant requested justification, or self-defense, instructions on both the murder charge and the battery charge. The trial court refused to give the instructions for either charge.

The trial court made the correct ruling in the murder case. In that case all of the evidence, including appellant’s testimony, shows that appellant did not use all reasonable means to avoid the killing. Once he returned to the car, he had reached a port of safety and could have gone home and avoided killing Callahan. Yet, it is undisputed that after reaching safety, he went back to the confrontation with a loaded pistol and killed Callahan. Ark. Stat. Ann. § 41-507 (Repl. 1977) provides that one “may not use deadly physical force in self defense if he knows that he can avoid the necessity of using that force with complete safety ... by retreating. . . .” The commentary provides:

“[o]ne who claims self-defense must show not only that the person killed was the aggressor, but that the accused used all reasonable means within his power and consistent with his safety to avoid the killing.” [citation omitted] Under most circumstances “reasonable means” includes retreat where retreat can safely be effected.

The appellant acknowledges the foregoing statute and commentary, but argues that it was for the jury, not the court, to decide whether the appellant could have safely avoided killing Callahan. From that, appellant argues the justification instruction should have been given. We find no merit in the argument. There must be some rational basis for submitting an instruction to the jury. Hughes v. State, 260 Ark. 399-A, 540 S.W.2d 592 (1976). Here, the undisputed proof was that appellant walked away from Callahan, went to the waiting car, got his loaded pistol from under the car seat, and then walked back to the place of confrontation and killed Callahan. He could have avoided the use of force with complete safety. Therefore, he was not entitled to the instruction on justification.

However, justification was an available defense in the battery case. In that case the defendant was walking away from the murder when Dovie Woods aimed a pistol at his back. She admitted she would have shot him. A bystander warned appellant that he was about to be shot when he turned around and shot Woods. There was substantial evidence that the requirements of Ark. Stat. Ann. § 41-507 (Repl. 1977), the justification statute, were met because appellant could not have retreated with complete safety and was assaulted in a manner sufficient to cause a realistic fear for his life.

The conviction for first degree battery is reversed while the conviction for first degree murder is affirmed. The remaining question is, “What mandate should be issued?” The offenses charged, first degree murder and first degree battery, are separate and distinct offenses, defined by separate and distinct statutes, and each charge required separate and distinct evidence for conviction. When a judgment in a criminal case is correct as to one count, but erroneous as to another, as in this case, we have the power to sever the judgment, affirm the count on which the appellant was properly convicted, and reverse and grant a new trial as to the other. Such a procedure is used by the Eighth Circuit Court of Appeals, United States v. Greene, 591 F.2d 471 (8th Cir. 1979), by our Court of Appeals, Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983), and by other states, see, e.g., People v. Schnebley, 27 A.D.2d 639, 275 N.Y.S.2d 763 (1966). The fact that charges must be joined at the time of filing does not mean that they cannot be severed, either before trial or upon appeal.

We have examined the two findings of guilt to determine if there is any evidence to indicate that the jury’s decision to fix appellant’s sentence at 5 years on the battery count could have affected the 30 year sentence on the murder count. We find no such evidence. Thus, a remand on only the battery count will not violate the concurrent sentences rule. See Lee v. Lockhart, 754 F.2d 277 (8th Cir. 1985).

The conviction for first degree murder is affirmed; the conviction for first degree battery is reversed and remanded.

George Rose Smith, Hickman, and Hays, JJ., dissent.

Darrell Hickman, Justice,

concurring in part and dissenting in part. My objection only relates to remanding this case for a retrial on the battery charge. We are violating our own procedural rules and placing this defendant in jeopardy twice.

The murder and battery charges were required to be tried together because they were of a similar character (both shootings) based on “. . . a series of acts connected together or constituting parts of a single scheme or plan.” A.R.Cr.P. Rule 21.1. Indeed the second shooting occurred immediately after the first, and the defense is so interrelated with the facts of the first they cannot be separated in the second trial ordered.

We would not have allowed the state to first try Martin for murder and later for battery. This is the very kind of prosecution we ruled impermissible in Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986). In that case the charges were rape and kidnapping, separate offenses not included within the other that arose from one episode. The state sought two trials which we barred. Now we are approving two trials. The defendant will go into the second trial convicted of murder, unable to argue and defend that he was not guilty of the murder charge which is so closely related to the battery charge.

We have never affirmed a conviction for one offense and remanded a case for retrial of another, which were tried together. The reason we have not is obvious — it violates our own rules and the principle of double jeopardy. That principle is not just to prevent a second trial for the same offense. It has a procedural aspect which prevents harassment or repeated trials for conduct that arises from one episode. Ashe v. Swenson, 397 U.S. 436 (1970).

We can affirm the murder conviction and order the other charge dismissed unless the state elects to retry the whole case. Davis v. State, 118 Ark. 31, 175 S.W. 1168 (1915). But we cannot twice place this defendant in jeopardy.

These charges could not have been severed and the defendant tried separately as intimated by the majority. We held on October 20, in Crook v. State, that A.R.Cr.P. Rule 21 prohibited a separate later trial for a charge that arose out of the same episode.

The statement by the majority that it can find no evidence that the jury considered the 30 year sentence when it set the five year sentence is incredible. We have no idea how or why the jury set the sentence it did. That is the very reason we should send the case back for a complete new trial.

This defendant cannot obtain a fair trial on the second charge which is necessarily connected to the first. He cannot expect to defend himself on a related charge when the jury will know he is guilty of the primary charge.

What will the new jury be told? The majority does not say, because it does not know what will be done at the second trial. Whatever transpires will not be a fair trial according to a fair interpretation of our cases or procedures.

George Rose Smith and Hays, JJ., join in this dissent.


author: Steele Hays, Justice.

text:
    Harry WOLNER v. Dr. Leonard R. BOGAEV
    86-74
    718 S.W.2d 942
    Supreme Court of Arkansas
    Opinion delivered November 10, 1986

      Knauts & Cole, by: C. W. Knauts, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Steele Hays, Justice.

This is an appeal from a summary judgment in ■ a medical malpractice case. Two days before entering the hospital for a prostatic condition, Mr. Harry Wolner, age 83, fell backwards while climbing stairs in his home. The fall was noted on hospital and medical records.

On March 10, 1983 Mr. Wolner underwent prostatic surgery. He was up on the 11th and on the 12th spent several hours seated in a chair in his room, “alert and oriented.” On the morning of the 13th Mr. Wolner got up from his chair to go to the bathroom and fell, breaking his arm. Suit was filed against St. Bernard’s Regional Medical Center and against Dr. Leonard Bogaev, a Jonesboro urologist. Both defendants moved for summary judgment, and were upheld. Mr. Wolner has accepted the ruling in favor of the medical center, but has appealed from the ruling on behalf of Dr. Bogaev. He argues the trial court erred in holding there was no genuine issue of material fact. We sustain the argument.

In support of the motion are affidavits of Dr. Bogaev and of Dr. Richard Burns, consulting physician in the case. The affidavits state pertinent facts concerning Mr. Wolner’s history and treatment and that in the opinion of the treating physicians restraints were not warranted. Mr. Wolner’s response to the motion included an affidavit from Dr. James Sheridan of Piggott reciting his understanding of the facts and concluding that due to Mr. Wolner’s age, medication and history, “it would have been prudent to use either restraints or bedrails while he was not attended post-op. This patient had a history of falling and such a history would make it all the more important that steps be taken to prevent the recurrence of such accident.”

Dr. Bogaev faults the affidavit of Dr. Sheridan for failing to state that he was qualified to express an opinion as to the standard of care in Jonesboro, or that he had personal knowledge of the treatment rendered by Dr. Bogaev, and in failing to state Dr. Bogaev did not meet the standard of care of physicians saying only that it would have been “prudent” to use restraints.

The review of summary judgments is well stated in Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1981):

The principle of law which we must follow in review of summary judgment decisions is well established. On such motions the moving party has the burden of demonstrating that there is no genuine issue of fact for trial and any evidence submitted in support of the motion must be reviewed most favorably to the party against whom the relief is sought. Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable men might differ.

It is an extreme remedy. Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979). The object of a summary judgment is not to try the issue but to determine if there are issues to be tried. Ashley v. Eisele, 247 Ark. 281, 445 S.W.2d 76 (1969). If there is any doubt whatever, it should be denied. Southland Insurance v. Northwestern National Insurance Co., 255 Ark. 802, 502 S.W.2d 474 (1973).

We agree that Dr. Sheridan’s affidavit leaves something to be desired, but for several reasons we think it suffices. The fair inference is that Dr. Sheridan believes that good medical practice called for restraints for this patient. To say it would have been prudent to have ordered restraints is simply another way of saying it was imprudent to fail to do so. For purposes of summary judgment where doubts, if reasonable, must be resolved against the movant, we find that statement adequate. Trace X Chemical, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W.2d 89 (1979).

We attach no great significance to the fact that Dr. Sheridan did not claim in his affidavit to be familiar with medical standards in Jonesboro. The aim of that requirement is to prevent higher standards ordinarily found in the more urban areas from being applied where less demanding standards tend to prevail. We would expect to find standards of medical care in Jonesboro to be the equivalent, at least, of those practiced in Piggott. Thus, Dr. Sheridan was not implicitly imposing higher standards to Dr. Bogaev than should, in fairness, apply.

Dr. Bogaev cites ARCP Rule 56(e), Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985), and Hughes Western World, Inc. v. Westmoor Manufacturing Co., 269 Ark. 300, 261 S.W.2d 826 (1980) for the contention that Dr. Sheridan must have personal knowledge of the facts. It is correct that Rule 56 (e) requires personal knowledge by affiants in support of summary judgment, and we have held that affidavits couched in terms of “as Affiant understands it” are not sufficient. Pruitt and Hughes, supra. But those cases involve lay witnesses and obviously the requirement of personal knowledge has no application to an expert witness who is, in many instances, testifying to an opinion based entirely on assumed facts. Arkansas State Highway Commission v. Schell, 284 Ark. 293, 683 S.W.2d 618 (1985); Slayton v. Brunner, 276 Ark. 143, 633 S.W.2d 29 (1982); White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978); and see Ark. Unif. R. Evid. Rule 703.

Having recognized the imperfection of Dr. Sheridan’s affidavit (which, in a different case, might fail to measure up) we point out that we come to the result reached here because the affidavits of Drs. Bogaev and Burns are themselves merely conclusory assertions they were not at fault. When that is virtually all the supporting strength of a motion for summary judgment then the movant has failed to make a prima facie showing of entitlement to summary judgment and the burden of going forward does not shift to the opposing party. Hurtt v. Galeburn, 330 A.2d 134 (SC of Del. 1974) and see concurring opinion of Mr. Justice McClintock in Vassos v. Roussalis, 625 P.2d 768 (SC of Wyo. 1981).

As the moving party, Dr. Bogaev must show what the requisite standard of care was under the surrounding circumstances and show that he conformed to that standard. Until that is done, the burden of supplying acceptable proof does not shift to the non-moving party. Hurtt v. Galeburn, supra. The affidavits of Dr. Bogaev and Dr. Burns failed to provide any specifics as to the appropriate standard of care for the use of restraints so that the trial court could determine whether the conduct did conform, and whether factual issues remained in dispute. These affidavits simply asserted a general conclusion that restraints were not warranted. That fails to meet the requirements of Rule 56 and, hence, the burden never shifted to Mr. Wolner. It follows that the motion for summary judgment should not have been granted.

Reversed.


author: David Newbern, Justice. Per Curiam.

text:
    Helen Elizabeth SLOSS et al. v. FARMERS BANK AND TRUST CO.
    86-83
    719 S.W.2d 273
    Supreme Court of Arkansas
    Opinion delivered November 10, 1986
    [Supplemental Opinion on Denial of Motion to Reconsider Dismissal of Petition for Rehearing January 26, 1987.  ]

      Guy H. “Mutt” Jones, Sr., Phil Stratton, and Casey Jones, by: Phil Stratton, for appellant.

      Fendler, Gibson & Bearden, for appellee.
   David Newbern, Justice.

This appeal is from the probate court’s order awarding fees to the appellee, Farmers Bank and Trust Co., and its attorneys. The fees were for work by the bank and the attorneys during a fourteen-month period when the bank was serving as administrator in succession of the estate of Elizabeth Bowden. The appellants are beneficiaries named in Elizabeth Bowden’s will. The court once held the will was invalid, but that decision was reversed fourteen months later. Reddoch v. Blair, 285 Ark. 446, 688 S.W.2d 286 (1985). For that fourteen-month interim during which the bank was administrator of the estate, the court has awarded it a fee of $17,500 and its attorneys a fee of $22,500 plus $3000 for representing the estate in the appeal mentioned above.

The appellants urge five points on appeal: (1) that the probate judge should have recused himself; (2) that the court should have deferred consideration of the fees until distribution of the assets; (3) that the fee awarded the bank was excessive; (4) that the fees to the attorneys were excessive; and (5) that the appellants’ notice of appeal and brief in this court are defective.

We find no merit in any but the third point, thus we affirm the award to the attorneys and modify the award to the bank.

1. Recusal

The appellants contend there is a debilitating appearance of impropriety in this case because when the earlier appeal was orally argued to this court, the probate judge’s court reporter was at counsel table with the bank’s attorneys.

The appellants argue that Canon of Judicial Ethics 3.C(1) required the judge to recuse himself because the act of his court reporter had put him in a position where his impartiality might reasonably be questioned.

We find the appellants made no showing that this act on the part of the court reporter made it reasonable to question the impartiality of the judge. If a violation of Canon 3.C(1) occurred, it was a vicarious one at best. No testimony or other evidence of partiality on the part of the judge was abstracted. The appellants cite our decision in Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959), where we concluded that the matter of disqualification is one largely left to the discretion of the trial judge. We repeated that conclusion in Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983), where we noted the appearance of impartiality requirement by the Canon. There the trial judge had been accused by one of the parties of several acts of partiality, the most serious of which was inviting an attorney for one side in the case to* be a pallbearer at the judge’s father’s funeral eight days after the decision had been reached in the case and just two days before the decision was announced to the parties. Citing three recent cases in which we had held a judge should have disqualified himself, Jordan v. State, 274 Ark. 572, 626 S.W.2d 947 (1982); Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978); and Farley v. Jester, 257 Ark. 686, 520 S.W.2d 200 (1975), we held that for us to reverse on this ground we would have to find evidence that the trial judge was biased and that he communicated that bias to the litigants. Nothing in the appellants’ abstract or argument leads us to any such conclusion.

2. Failure to defer

When Ms. Bowden’s will was admitted to probate, Joe Martin was named executor. He and the attorneys representing him were paid fees for their efforts expended prior to the will being declared invalid by the probate court. When this court reversed that decision, Mr. Martin was reinstated as executor. He and his attorneys presumably will be entitled to further fees as the estate is wound up. The appellants urge that this situation and the magnitude of the fees ultimately to be awarded require that fees to the bank and its attorneys be deferred until the estate is distributed.

The appellants have cited no authority for this contention and we know of none. The argument gives us pause because the tortured path this estate has followed will probably result in more fees to personal representatives and attorneys and accountants than would have been ordered had the going been smooth. However, we cannot say the argument of the appellants is convincing. The earned entitlements of the bank and its attorneys can be calculated now, and they will be no different when the estate is distributed.

In the absence of citation of authority or convincing argument we need not consider this point further. Arkansas Louisiana Gas Co. v. Hutcherson, 287 Ark. 247, 697 S.W.2d 907 (1985); Gray v. Ragland, 277 Ark. 232, 640 S.W.2d 788 (1982).

3. The bank’s fee

The probate code provisions on granting a fee to a personal representative are found in Ark. Stat. Ann. § 62-2208 (Supp. 1985). They are:

a. COMPENSATION OF PERSONAL REPRESENTATIVE. The personal representative shall be allowed such compensation for his services when and as earned, as the court shall deem just and reasonable, not to exceed, except as provided in subsection b hereof, ten percent (10%) of the first one thousand dollars ($1,000), and five percent (5%) of the next four thousand dollars ($4,000), and three percent (3%) of the balance of the value of the personal property passing through the hands of the personal representative, provided that compensation shall be allowed only on the value of such property as shall have been fully administered.
b. COMPENSATION FOR SPECIAL SERVICES. When the personal representative has performed substantial duties with respect to or on account of real property of the decedent, the court may, in addition to other compensation provided by this Code, allow a reasonable compensation for such services, the amount thereof to be fixed by the court, taking into consideration the nature and extent of the services, the extent and value of the real property and other relevant circumstances. The burden of the payment of such additional compensation shall be borne in accordance with applicable provisions of the will, if any, otherwise by the distributees or beneficiaries of the estate whom the court finds to have been benefited by such services, in accordance with the principles of equity.

The statute makes it clear that the probate court may award a fee, in excess of the listed percentages, for “substantial duties with respect to or on account of real property of the decedent.” In deciding the bank was entitled to extra fees on that basis, the court recited:

First, as to the bank, we all acknowledge that the bulk of this Estate is the real property, valued at $1,384,200.00 in the Supplemental Accounting. That value of course is not included in the total when computing the fee of a personal representative under Ark. Stat. 66-2208. Excluding the real property, the statutory fee, without other considerations, would amount to just over $5,000.00. In this case, to exclude the real property totally from consideration would be most inequitable. There was a substantial farming operation, albeit leased out, the decedent’s residence and other improvements that had to be cared for and managed, and a good portion of the time and efforts put forth by the bank was in relation to the realty. I am of the opinion that the bank, as Successor Administrator, is entitled to a fee in the total amount of $17,500.00 for its services in the case.

While we could agree with the trial court if he had recited or alluded to a list of services performed, we cannot find any evidence of such “substantial services” having been performed by the bank. While the value of the real estate is impressive, according to the statute it is only in connection with finding that the personal representative has performed the substantial services that its value becomes relevant. The evidence showed that the land was already leased when the bank took over as administrator. The tax work was being performed by accountants and attorneys, and the initial return had been filed by the bank’s predecessor. All the bank did, according to Mr. Harmon, its trust officer in charge of the account, was collect rents and make disbursements. There is no evidence that the bank and its officer made any discretionary or time-consuming judgments with respect to the management of the real estate. Mr. Harmon’s records showed he had spent 129.9 hours on the estate over the fourteen months. He estimated another 14.3 hours. Much of this approximately 145 hours about which Mr. Harmon testified was spent conferring with lawyers and accountants, although he did arrange for insurance on estate property and make some trips, for example, to have the alarm system on the main house repaired and to intercede in the sale of a cotton gin.

Mr. Harmon wrote some 156 checks on behalf of the estate, but there is no showing as to what percentage of them related to managing real estate or paying bills or other obligations of the decedent.

Our calculation of the statutory fee, assuming as the parties apparently agree that the personalty in the estate was valued at $100,000, is as follows:

10% x $ 1,000 = $ 100
5% x 4,000 = 200
3% x 95,000 = 2,850
$3,150

We do not know how the trial court arrived at this figure of “just over $5,000” as the statutory fee. However, we are willing to give him and the bank the benefit of some knowledge we may not have. We cannot find evidence justifying the award of $17,500, and thus we reduce the fee to $5,000. See Saad v. Arkansas Trust Co., 225 Ark. 33, 280 S.W.2d 894 (1955) (opinion on rehearing 225 Ark. 37, 280 S.W.2d 897.)

4. The lawyers’ fee

The fee to the lawyers and the amount of work the evidence showed they performed stands in stark contrast to the fee awarded the bank and the work done by it. The firm of Fendler, Gibson and Bearden represented the bank during the fourteen-month period. All three members of the firm worked on the estate. They were awarded $22,500 for their general services and $3,000 for their representation of the bank in this court on the earlier appeal.

Mr. Fendler maintains his office in Blytheville, whereas his partners Mr. Bearden and Mr. Gibson have their office in Osceola. Mr. Fendler’s separate time sheet recapitulation shows he spent 355.2 hours on the estate. Mr. Bearden’s and Mr. Gibson’s recapitulation shows 397.2 hours spent on the estate for a total of 752.4 hours. Their agreement with the bank was that they would be paid $75 per hour. At that rate, their fee would be $56,430.

The statutory provision with respect to their fee is found in Ark. Stat. Ann. § 62-2208(d) (Supp. 1985) as follows:

d. EMPLOYMENT OF LEGAL COUNSEL. The personal representative may employ legal counsel in connection with the probate of the will or the administration of the estate, and the attorney so employed shall prepare and present to the Probate Court all necessary notices, petitions, orders, appraisals, bills of sale, deeds, leases, contracts, agreements, inventories, financial accounts, reports and all other proper and necessary legal instruments during the entire six (6) months, or longer when necessary, while said estate is required by law to remain open, and for said legal services such attorney, unless otherwise contracted with the personal representative, heirs and beneficiaries of said estate, shall be allowed a fee based on the total market value of the real and personal property reportable in the Probate Court, as follows: 5% of the [first] $5,000; 4% of the next $20,000; 3% of the next $75,000; 23A% of the next $300,000; 2Vi% of the next $600,000; and 2% of the value of all properties thereafter. If this schedule of fees is determined by the court to be either excessive or insufficient under the circumstances then the court shall allow said attorney a fee commensurate with the value of the legal services rendered.

Thus if they were awarded a fee based on $100,000 personalty plus real property valued at $1,384,200 or a total of $1,484,200 their fee would be:

5% x $ 5,000 = $ 250
4% x 20,000 = 800
3% x 75,000 = 2,250
2 3/4% x 300,000 = 8,250
2 1/2% x 600,000 = 15,000
2% x 384,200 = 7,684
$34,234

Unlike the bank, which was awarded far in excess of that which would have been awarded had the statutory guide been followed, these attorneys received far less. The probate judge was perhaps persuaded to cut the lawyers’ fee because of the allegations the appellants made to him, and again in their briefs here, that there was duplicate billing of, for example, time spent by Mr. Fendler speaking with Mr. Gibson or Mr. Bearden. We cannot be certain why he awarded them less than that called for by the statutory guide and far less than the amount they would have been due had they been awarded the reasonable sum of $75 for each hour their records show they spent on behalf of the estate. At any rate, we are not willing to say the $22,500 was excessive.

5. Notice of appeal and brief

The appellees claim the appellants’ notice of appeal is defective because the signature of the attorney was entered by another attorney at the direction of the one whose name was signed. The appellees cite only Ark. R. Civ. P. 11 which required, at the time this notice was filed, that an attorney representing the appealing party sign it.

Mr. Stratton, whose name appeared on the notice, testified that he dictated the notice on the telephone to a fellow attorney and authorized the signature of his name. There clearly is no fraud on the court or any party and no prejudice whatever to the appellees. We regard this argument as frivolous.

Also frivolous is the appellees’ argument that the appellants violated Arkansas Supreme Court and Court of Appeals Rule 6 by showing disrespect to the trial court in their brief. They argue that (1) because the appellants said they observed no pain or agony in the trial court with respect to the fees being charged to the estate and (2) the trial court erroneously computed the bank’s fee at $121 per hour, the appellants were being disrespectful.

722 S.W.2d 598

Neither of these remarks comes close to those we condemned in McLemore v. Elliot, 272 Ark. 306, 614 S.W.2d 226 (1981), cited by the appellees, and we will not give further consideration to the point.

The trial court’s order is affirmed as modified and remanded for an order not inconsistent with this opinion.

Supplemental Opinion on Denial of Motion to Reconsider Dismissal of Petition for Rehearing January 26, 1987

Per Curiam.

In our original decision of November 10,1986, we reduced the fee allowed by the probate judge to the appellee for services as administrator. The appellee mailed a petition for rehearing which was filed in our clerk’s office on Monday, December 1, 1986. We denied the petition as being untimely because it was filed more than seventeen calendar days after our decision was rendered and was thus in violation of Arkansas Supreme Court and Court of Appeals Rule 20(a).

Counsel for the appellee contends he had until December 1, 1986, to file the petition for rehearing. He contends Ark. R. App. P. 9 allows extension to the next business day when the seventeenth day falls on a legal holiday. He also contends our clerk informed him that the next business day after November 27, Thanksgiving Day, would be Monday, December 1, 1986, because the governor had proclaimed that state offices would be closed on Friday, November 28, 1986.

Rather than decide whether Ark. R. App. P. 9 is controlling over the more specific provision of our rule 20(a) and the effect of the governor’s proclamation, which was presumably made pursuant to Ark. Stat. Ann. §69-112.1 (Repl. 1979), we have reviewed the appellee’s petition for rehearing on its merits and concluded that it must be denied, whether or not it was timely.

We have concluded that our rules 20(a) and 29 subsection 6. should be revised to remove the strict seventeen calendar day requirement for filing petitions for review and rehearing so that Ark. R. App. P. 9 will apply to the time limits on those petitions. We make those changes this date in a separate per curiam order.

Glaze, J., concurs and would permit petition for rehearing to be filed on basis of clerk’s office calculated and designated time extended past regular seventeen day period.


author: Per Curiam.

text:
    Kenny HALFACRE v. STATE of Arkansas
    718 S.W.2d 945
    Supreme Court of Arkansas
    Opinion delivered November 10, 1986
    Appellant, pro se.

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

In March 1986, the Court of Appeals affirmed Kenny Halfacre’s convictions for burglary and theft of property. Halfacre v. State, CA CR 85-171 (March 12, 1986). In May, we denied Halfacre’s postconviction petition to proceed under Rule 37. Halfacre v. State, CR 85-165 (May 5, 1986). On October 21, 1986, more than seven months after the Court of Appeals affirmed the convictions, Halfacre filed the instant motion in which he asks this court to grant a belated petition for review of the Court of Appeals’ decision. Petitioner Halfacre does not contend that he did not know that the case had been affirmed in time to file a timely petition for review. We find no basis to grant a belated review.

Over his objection, petitioner’s wife was permitted to testify against him at trial. The Court of Appeals held that the testimony was admissible under the Uniform Rules of Evidence, Rule 504. Petitioner now contends that our recent decision in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), in which we held that the Uniform Rules of Evidence were not validly adopted by the legislature in 1976, would compel reversal on that point.

Petitioner has misunderstood the extent of the holding in Ricarte. It does not provide a remedy unless the issue of the validity of the uniform rules was raised in the trial court. This was not done at petitioner’s trial. There, the issue was limited to whether the wife’s testimony was a confidential communication within the meaning of Rule 504. An appellant cannot change the grounds for an objection in a petition for rehearing or review. See Vasquez v. State, 287 Ark. 473-A, 702 S.W.2d 411 (1986). More importantly, a petition for review must be filed within seventeen days of the date of the Court of Appeals’ decision. Rules of Supreme Court, Rule 29(6). There is no provision in our rules for a belated petition for review.

Petition denied.

       The Uniform Rules of Evidence were adopted by this court effective on the date of the Ricarte decision.


text:
    Buddy J. TOWNSEND v. STATE of Arkansas
    718 S.W.2d 111
    Supreme Court of Arkansas
    Opinion delivered November 10, 1986

      Jeff Duty, for appellant.
    No response.
   Per Curiam.

Appellant, Buddy J. Townsend, by his attorney, has filed for a rule on the clerk.

His attorney, Jeff Duty, admits that the record was tendered late due to a mistake on his part.

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

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


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

text:
    Charlie R. BURDETTE v. Alfred MADISON
    86-86
    719 S.W.2d 418
    Supreme Court of Arkansas
    Opinion delivered November 17, 1986

      Shackleford, Shackleford & Phillips, P.A., for appellant.

      Michael E. Surguine, for appellee.
   Jack Holt, Jr., Chief Justice.

The trial judge, in his order, characterized the automobile collision which is the subject of this lawsuit as an unavoidable accident, yet made findings as to the negligence of the parties. On appeal, appellant challenges the propriety of applying the unavoidable accident doctrine to the facts of this case and further claims the court’s findings were against the preponderance of the evidence. We agree that the trial judge erred in finding that an unavoidable accident occurred, but affirm his holding on negligence. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(o).

The accident occurred on January 8, 1985, on Thomas Street in Stamps, Arkansas. The appellant, Charlie R. Burdette, was driving north when the appellee, Alfred Madison, pulled out of a parking space on the side of the street and the cars collided, resulting in property damage, but no personal injuries. Appellant and appellee work for Alan White Co., of Stamps and both men were on their way to lunch when the accident occurred.

Appellant testified that he was driving straight down the main road about ten miles per hour and when he got even with appellee’s car the appellee pulled out and hit him. He claims appellee did not look into his rearview mirror before pulling out, nor did he use a turn signal.

Appellee testified that he got in his car, backed up and looked down Thomas Street, and, since he saw no one coming, he pulled into the street. The appellant then came along and hit him, he said. Two passengers in appellee’s car also testified that they looked down Thomas Street before the appellee pulled out and that they did not see anyone coming either.

Although a police officer investigated the accident, he did not issue any tickets and he has since left the police force. He was not available to testify and the chief of police testified that the accident report filed by the officer could not be located.

The case was tried before a judge without a jury. After hearing the testimony, the judge held as follows:

I do agree under normal circumstances the person proceeding down the roadway has the right of way, but I do find that these circumstances were not normal, and having been in municipal court for eight years once upon a time and having heard failure to yield cases, I am satisfied there is such a thing now as an unavoidable accident. This one, I feel, falls in that category and to the extent of negligence, I feel that neither driver was more than fifty percent negligent, and therefore your petition, or complaint is denied and your countercomplaint is denied.

“The term ‘unavoidable accident’ actually means a collision occurring without negligence on the part of either driver.” Caldwell v. McLeod, 235 Ark. 799, 362 S.W.2d 436 (1962). It “is such an occurrence or happening as, under all the attendant circumstances and conditions, could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned.” Sullivan v. Fanestiel, 229 Ark. 662, 317 S.W.2d 713 (1958), quoting, Uncapher v. Baltimore & O.R. Co., 127 Ohio St. 351, 188 N.E. 553 (1933).

This court began to take a restrictive approach regarding use of the unavoidable accident doctrine in Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872 (1965). In that case the parties admitted that the collision was caused by the failure of the truck driver to obey a stop sign, but insisted that his inability to stop was due to an unexpected and unavoidable failure of his brakes to function. We adopted the reasoning of the California Supreme Court in Butigan v. Yellow Cab Co., 49 Cal. 2d 652, 320 P.2d 500 (1958), where they stated:

The so-called defense of inevitable accident is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury. . . . Since the ordinary instructions on negligence and proximate cause sufficiently show that the plaintiff must sustain his burden of proof on these issues in order to recover, the instruction on unavoidable accident serves no useful purpose.

In adopting their reasoning, we acknowledged that “in exceptional situations an unavoidable accident instruction may be permissible.” Houston, supra. As an example, this court mentioned that a wreck caused by a driver, with no previous history of coronary disease, who loses control of his car as.a result of a heart attack, might be an unavoidable accident. See also, Burton v. Bingham, 239 Ark. 436, 389 S.W.2d 876 (1965); Rhoden, Adm’r v. Lovelady, 239 Ark. 1015, 395 S.W.2d 756 (1965); Oklahoma Tire & Supply v. Bass, 240 Ark. 496, 401 S.W.2d 35 (1966); Lewis v. Crockett, 243 Ark. 377, 420 S.W.2d 89 (1967); Cannor v. Cooper, 245 Ark. 386, 432 S.W.2d 761 (1968); Nelson v. Busby, 246 Ark. 247, 437 S.W.2d 799 (1969); Moore, Adm’r v. Rye, 255 Ark. 469, 500 S.W.2d 751 (1973); and 57 Am Jur 2d Negligence §§ 17, 18 pp. 359-60 (1971).

We have referred to unavoidable accident as a “largely discredited defense”, Evans v. Wilson, 279 Ark. 224, 650 S.W.2d 569 (1983), and such an instruction was intentionally omitted from the second edition of the Arkansas Model Jury Instructions Civil “because it is applicable only in very rare instances” and “presence of the instruction” in the first edition “caused its use in a number of unjustified instances.” AMI Civil 2d 604.

There is nothing “rare” or “exceptional” about the facts of this automobile accident. There is no claim of obstructed vision, wet or slippery conditions, illness of one of the drivers, or acts of God. The accident would not have happened but for the negligence of the drivers. Accordingly it was error for the trial judge to consider the doctrine of unavoidable accident as a partial basis for his decision. We do not reverse the judge’s holding, however, because of the other language in his order. When the judge found that neither driver was more than fifty percent negligent, he, in effect, held that both drivers were fifty percent negligent.

The proper standard on appellate review of cases tried to the court sitting as a jury, is that “findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Commercial Union Ins. Co. v. Sanders, 272 Ark. 25, 611 S.W.2d 754 (1981), quoting Taylor v. Richardson, 266 Ark. 447, 585 S.W.2d 934 (1979); Ark. R. Civ. P. Rule 52.

We cannot say that the trial judge’s finding of facts leading to the conclusion that the parties were each fifty percent negligent was clearly against the preponderance of the evidence. The court could have found the appellant failed in the general duty of maintaining a reasonable lookout and of keeping his car under control, and that the appellee failed to use reasonable care in looking out for others, in yielding the right of way to other users of the road, and in failing to signal his intention to pull out. Annotation, 29 A.L.R.2d 107 § 2 pp. 111, 112 (1953). In so holding, the trial court had the advantage of hearing the testimony in court and assessing the credibility of the parties. We are always reluctant to usurp this function of the trial court, and in this case, we see no basis for doing so.

Accordingly, the judgment is affirmed.

Hickman, Purtle, and Hays, JJ., dissent.

John I. Purtle, Justice,

dissenting. Although I agree with the part of the majority opinion which holds that the accident was not unavoidable, I disagree with the affirmance of the judgment. There is not a scintilla of evidence that the appellant was negligent in any manner. The appellant was driving down a public street, well within the speed limit. He did not violate any statute or rule of the road. The appellee pulled out from a parked position alongside the traveled portion of the street without signalling and struck the side of appellant’s vehicle.

I know of no rule of trial, appellate procedure or standard of review which justifies this decision. I would reverse and remand for a new trial.

Hickman, J., joins in this dissent.


author: George Rose Smith, Justice. David Newbern, Justice, John I. Purtle, Justice,

text:
    Patricia HENDRICKSON v. STATE of Arkansas
    CR 86-119
    719 S.W.2d 420
    Supreme Court of Arkansas
    Opinion delivered November 17, 1986

      Mathis & Mathis, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Patricia Hendrickson, was charged with capital murder in that she conspired with Norma Foster and Mark Yarbrough, a college student, to hire a second student, Howard Vagi, to murder the appellant’s husband, Orin Hendrickson, for $16,000. At the appellant’s first trial she was found guilty and sentenced to death. We reversed that conviction because the State was allowed to introduce a statement that the police had taken from her immediately after she had been warned of her rights and had said that she wanted to talk to her lawyer. Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985). Upon a retrial she was again found guilty of capital murder and was sentenced to life imprisonment without parole. This appeal is from that conviction.

Yarbrough, one of the students, was the State’s principal witness as to the events leading up to the crime. He had known Norma Foster, a college house mother, and through her had come to know the appellant. He testified that Norma approached him about arranging a killing. He mentioned it to Vagi, who wanted to do it for the money. The crime was planned in detail. The appellant supplied a picture of her husband and a key to the Hendricksons’ house. She made a down payment of $5,000 or more. Yarbrough showed the house to Vagi.

Vagi, who entered a negotiated plea in return for a life sentence, testified about the crime itself. He bought a shotgun. On the afternoon of the murder he went to the house, entering with the key. He waited until Hendrickson came home in the evening. After Hendrickson entered the kitchen through a door from the garage, Vagi shot him in the chest, as he had been instructed to do. Hendrickson fell to the floor. Vagi then ransacked drawers to create the appearance of a robbery. He thought the victim might still be alive and shot him a second time. After that he left the house. The appellant had been in Hot Springs that afternoon. She and Norma found the body when they went to the house together. The police were notified. The facts were eventually discovered. The informations were filed about eight months after the homicide.

It is first argued that two photographs of the victim’s body, clothed and lying face down on the kitchen floor in an extensive area of blood, should not have been introduced by the State. The medical examiner had already testified about the cause of death and had presented two pictures taken after the body had been cleaned. Both pictures are of the upper part of the body. One, taken from the front, shows the entry points of the two shots. The other, taken from the back, shows small spots where pellets left the body.

There was no objection to the pictures taken by the medical examiner, but it is argued that the prejudicial effect of the two pictures of the body on the floor outweighéd whatever probative value they might have. The point is made that the cause of death had already been proved, so the pictures were not needed to establish that fact. We have held that it is immaterial that photographs are cumulative to other evidence. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Here the two photographs corroborate Vagi’s account of the crime. We do not regard them as being especially inflammatory, but even if they were, their admissibility would still be a matter lying within the trial court’s discretion. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, 105 S. Ct. 2346 (1985). Here we find no abuse of discretion.

The appellant’s second argument is that the court was wrong in ruling that the appellant’s statement to the police, although inadmissible as evidence during the State’s case in chief, could nevertheless be used by the prosecuting attorney in cross-examination of a defense witness, Dr. Stevens.

We hold that the trial court’s ruling was right, but the facts must be examined in some detail. About eight months after the crime was committed, the police obtained from the appellant an inculpatory statement, which was recorded on tape. That is the statement we found to be inadmissible on the first appeal. In that statement the appellant admitted having planned the murder, having supplied the photograph of her husband and the key to the house, and having paid $5,000 to Yarbrough as a down payment. She said that when she arrived at the house that night with Norma she did not know “for sure” that her husband was dead. At the first trial she testified in her own defense. She denied any complicity in the crime, saying that the various witnesses who testified to her connection with the killing were lying. She did not testify at the second trial.

Dr. Stevens, a psychologist, was called as a defense witness at the second trial. He said he had consulted with Mrs. Hendrickson four times, all while she was confined. The first interview occurred in August after we had reversed the conviction in April. The interviews were conducted at the request of the defense counsel. In addition to talking with the appellant Dr. Stevens administered several tests, which he described. He found her IQ to be 81, which is well below average. He doubted if she could compete at the college level. He said she does not have a dominant personality. She tends to be “a very feminine, mousey, passive, dependent kind of person who would be expected to be very easily led.” He thought her to be open and straightforward in talking about situations.

Toward the end of his direct examination he was asked about Mrs. Hendrickson’s knowledge of events immediately before and after her husband’s death. He said she could remember the activities of that day up until the time she found him, but from that point on her memory was very sketchy for months after-wards. He said she had no memory about having been incarcerated in certain places and could give him no information about it. The doctor’s direct examination ended in this manner:

Q. Doctor, did you make a determination as to whether she had any guilty knowledge in connection with the death of Orin Hendrickson?
A. I did. It was my determination that she does not have.

The prosecutor, before undertaking any cross-examination, argued in chambers that defense counsel should make the defendant herself available for cross-examination. The court disallowed that, but ruled that the prosecutor could take the defendant’s statements from the transcript of the first trial and question the witness about that information. Defense counsel then announced that Dr. Stevens was withdrawn as a witness, because the court had ruled that he could be cross-examined about the defendant’s statement to the police and about her testimony at the first trial. The court instructed the jury not to consider any of Dr. Steven’s testimony.

Counsel argue that when the court ruled as it did, the defendant had to withdraw Dr. Stevens as a witness or submit to the introduction of inadmissible evidence. “This ruling, in effect, would have denied the Defendant her right not to take the witness stand.”

We disagree. Although the Supreme Court has not decided the question in the fact situation now before us, we interpret its decisions to mean that the proposed cross-examination would have been permissible.

The first relevant Supreme Court case was decided back in 1954, twelve years before the Miranda rules were announced. Walder v. United States, 347 U.S. 62 (1954). There the trial court sustained Walder’s motion to suppress a heroin capsule because it had been obtained by an unlawful search and seizure. When Walder was tried upon charges arising from four other illicit drug transactions, he testified that he had never sold or possessed narcotics in his life. The Government then questioned him about the capsule; he denied that narcotics had been taken from him. The Government called as witnesses an officer who had participated in the search and the chemist who had analyzed the heroin capsule. The trial judge admitted the testimony, but instructed the jury that the evidence was to be considered only as impeaching the defendant’s testimony, not as to his guilt. The Supreme Court upheld the trial judge’s ruling, saying:

It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.
... Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.

The Walder case has been steadfastly adhered to by the Court. In Harris v. New York, 401 U.S. 222 (1971), a statement made by the defendant to the police was held by the trial court to be inadmissible under Miranda v. Arizona, 384 U.S. 436 (1966). When the defendant took the stand and denied having made drug sales, the trial court allowed him to be cross-examined about the questions and answers in the suppressed statement. The Supreme Court sustained that ruling, in language particularly applicable to our present case:

Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. [Citations.] Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment. 401 U.S. at 225.

The last sentence in the quotation is directly applicable to the case at bar. Here the inconsistent statements were made to a third person, Dr. Stevens. It was therefore proper to use appellant’s prior statements and testimony for the cross-examination and impeachment of Dr. Stevens.

We have followed the Harris principle in three cases. Zachry v. State, 260 Ark. 97, 538 S.W.2d 25 (1976); Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975); Rooks v. State, 250 Ark. 561, 466 S.W.2d 478 (1971). Wedidnot, however, have the benefit of the later Supreme Court opinions and consequently mentioned a footnote in Harris to the effect that the voluntariness of the defendant’s confession is not material to its use as a basis for cross-examination. Our prior opinions are modified to the extent of forbidding the use of involuntary statements.

The Supreme Court again stated the Harris principles in Oregon v. Hass, 420 U.S. 714 (1975). That case was like ours in that the officers obtained an inculpatory statement from the suspect after he had asked for a lawyer. In holding that the inadmissible statement could nevertheless be used in the cross-examination of the defendant, the Court included in its opinion two sentences pertinent to the case at bar: “Here, too, the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.” 420 U.S. 722. “The effect of inadmissibility in the Harris case and in this case is the same: inadmissibility would pervert the constitutional right into a right to falsify free from the embarrassment of impeachment evidence from the defendant’s own mouth.” Id., 723. In Mincey v. Arizona, 437 U.S. 385 (1978), the Court directly held, as it had implied in earlier opinions, that the prosecution could not use in its cross-examination of the defendant a statement that was not voluntary, having been obtained while the defendant was in a hospital and in no condition to make a statement freely. In the case at bar there is no question about the voluntariness of the appellant’s statements to the police. To the contrary, at the Denno hearing before the first trial she herself testified that there had been no threats or intimidation.

It is perfectly clear that, pursuant to the decisions of the Supreme Court, the prosecutor would have been entitled to use, in cross-examination, Mrs. Hendrickson’s statements to the police and her testimony at the first trial if she had taken the stand at the second trial. She exercised her right not to testify. In defending the charge, however, she attempted to inform the jury through Dr. Stevens that she had no guilty knowledge of the crime. Dr. Stevens buttressed his testimony with his professional qualifications and with his statement that Mrs. Hendrickson was “open and straightforward” in her consultations with him.

It is crystal clear, however, that this maneuver to bring before the jury Mrs. Hendrickson’s asserted lack of guilty knowledge cannot be permitted to succeed without affording to the prosecution its right of cross-examination. The crime was committed on March 10, 1983. The appellant made her statements to the police on November 21, more than eight months later. At that time she remembered the details of the homicide. She testified at her first trial in April, 1984, and still remembered the details. After our reversal she consulted Dr. Stevens, apparently to obtain his opinion for its possible use at the second trial. Since Dr. Stevens got all his information from Mrs. Hendrickson herself, she must have suffered or pretended to have suffered sudden lapses of memory between the decision on the first appeal in April and the second trial, which was in the following December. The prosecutor, in his cross-examination, would have been entitled to use the appellant’s earlier statements and testimony to impeach the witness by testing the basis for his belief that his patient had no guilty knowledge of the murder. Indeed, it was specifically the threat of that cross-examination that led the defense to withdraw Dr. Stevens as a witness. The court’s ruling was correct.

The appellant’s third contention is that the evidence is insufficient to support a conviction for capital murder. Here the only argument is that apparently the jury did not give full consideration to the defendant’s below-average IQ and to her being a quiet, unaggressive, unassuming, and undemanding person. That, however, is a matter of weighing the evidence, which falls within the province of the jury, not of this court.

This being a life sentence, we have considered all the possible errors that have been brought to our attention by counsel and find no error prejudicial to the appellant.

Affirmed.

Newbern, J., concurs.

Purtle, J., dissents.

David Newbern, Justice,

concurring. The majority opinion justifies the decision of the trial court to permit cross-examination of Dr. Stevens using Mrs. Hendrickson’s clearly inadmissible statement upon Walder v. United States, 347 U.S. 62 (1954). I do not believe the majority’s reliance on that case in these circumstances is correct.

If the appellant had chosen to testify and had denied participating in the crime or had denied making any statement to the police about it, I believe Walder v. United States, supra, would have permitted cross-examination based upon her statement. We have adopted its “fight fire with fire” rationale, and I believe appropriately so. McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986); Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986); Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984). However, this case presents a different situation. Dr. Stevens’ testimony was about his opinion as to the appellant’s guilty knowledge, or lack of it, at the time he examined her. The appellant’s condition in that respect when she was examined in 1985 by Dr. Stevens may have been different from her condition in 1983 when she was first charged with the offense after having made her inculpatory statement. Rather than fighting fire with fire, as is permitted in our decisions following Walder v. United States, supra, allowing cross-examination of Dr. Stevens on the basis of the appellant’s statement would be more like fighting a lighted match with a conflagration.

We need not reach any such conclusion, for the decision requiring the withdrawal of Dr. Stevens’ testimony, particularly after it had been heard by the jury, was not an error of such magnitude as to require reversal in the face of overwhelming evidence of the appellant’s guilt. Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986). I, therefore, concur in the result reached by the majority opinion.

John I. Purtle, Justice,

dissenting. I respectfully dissent from the part of the majority opinion which approves the cross-examination of a third-party witness with an involuntary statement made by the appellant. This same statement was ruled inadmissible and was the sole basis for reversal of the conviction in the first trial. See Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985). At the second trial the appellant called a treating psychologist who stated that the appellant could not recall the events of the day her husband was murdered and that her memory for several months thereafter was sketchy. The witness was asked by the defense attorney whether the appellant had any guilty knowledge in connection with her husband’s death. It was the opinion of the expert witness that the appellant did not have such knowledge. The court ruled at this point that the psychologist could be cross-examined by the prosecutor with the involuntary statement given by the appellant after invoking her right to counsel.

The effect of the majority’s holding is to allow the statement, which was inculpatory, to be introduced at a second trial under the guise of cross-examination of a witness other than the declarant of the statement. Under this theory an involuntary, custodial statement is admissible so long as it is laundered through a first trial and then used by the prosecution to impeach a witness other than the accused at a subsequent trial. I must also point out that during the direct examination the psychologist was not asked one word concerning what the appellant had told him. He was asked only to give his opinion as to her guilty knowledge.

The reason the parties and the majority opinion fail to supply precedent is that there is none. All the cases cited in the majority opinion are cases where the accused took the stand at the trial and the prior inconsistent statement of the defendant was used to impeach the defendant. The reason for lack of precedent for this fact situation is that it is very likely that trial courts have refused to allow cross-examination of one witness with the prior statement of another person, given out of the presence of the testifying witness.

In Harris v. New York, 401 U.S. 222 (1971), the Supreme Court stated: “Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately.” In Walder v. United States, 347 U.S. 62 (1954), the defendant was also a witness. There the trial court allowed Walder to be cross-examined concerning his prior inconsistent statements. The United States Supreme Court approved this cross-examination. However, the Walder Court stated: “He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief.”

In the case before us the trial court clearly violated the express words of the Walder case in allowing the prosecution to introduce by way of rebuttal evidence illegally secured by it. If the appellant had taken the stand, and given testimony inconsistent with the prior statement, cross-examination concerning the statement may have been proper. However, the appellant had not taken the stand and obviously did not intend to do so. The state was allowed to do indirectly what it could not do directly, that is, to present evidence of the appellant’s prior involuntary statement. She was forced either to testify or withdraw the witness. Thus, she was not free to deny all the elements of the case against her without giving leave to the Government to use its illegally procured statement.