author: Steele Hays, Justice.

text:
    Rosalie McCLELLAND v. PARIS PUBLIC SCHOOLS
    87-173
    742 S.W.2d 907
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      Mitchell & Roachell, by: Paul J. Ward and Clayton R. Blackstock, for appellant.

      G. Ross Smith & Associates, P.A., by: G. Ross Smith and W. Paul Blume, for appellee.
   Steele Hays, Justice.

In this case of first impression, appellant Rosalie McClelland questions the constitutionality of a residency policy for teachers instituted by the Paris Public Schools, appellee.

Mrs. McClelland began teaching in the Paris School District in 1974 when she lived within the school district. While she was teaching and residing in the district, the district instituted a policy requiring certified personnel to reside within the district boundaries or within a ten mile driving distance of the city limits of Paris. Employees of the district were grandfathered in under the policy so long as they remained at their current residences.

In 1984 Mrs. McClelland approached the superintendent of the district and asked whether the policy would be applied to her if she were to move outside of the policy boundaries. She was told that it would and that her contract would not be renewed if that occurred. Nevertheless she moved approximately seventeen miles outside the district and her contract with the district was nonrenewed under the procedures of the Arkansas Teacher Fair Dismissal Act.

Mrs. McClelland filed suit in federal district court alleging violation of federal constitutional rights with her state law arguments presented as a pendent claim. The district court entered summary judgment in favor of the school district on the federal grounds and dismissed without prejudice the pendent state claims. No appeal was taken from that decision.

Mrs. McClelland also filed suit in Logan Circuit Court, appealing the school board’s decision. The circuit court found her arguments to be without merit and affirmed the board’s decision.

Mrs. McClelland claims the district residency policy violates her rights of equal protection under the Arkansas Constitution art. II, § 18; that the action was discriminatory and unreasonable under Ark. Code Ann. § 6-17-1510 (1987) [Ark. Stat. Ann. § 80-1266.9 (Repl. 1980)] of the Teacher Fair Dismissal Act; and that her implied rights under art. II of the Arkansas Constitution to travel, reside and teach were violated.

Under any of the above theories the residency policy should be reviewed by its reasonableness or rational basis. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983); City of Piggott v. Woodard, 261 Ark. 406, 549 S.W.2d 278 (1977); Eubanks v. Nat’l Federation Student Protection Trust, 290 Ark. 541, 721 S.W.2d 644 (1986) (equal protection); Teacher Fair Dismissal Act — Ark. Code Ann. §§ 6-17-1507, 6-17-1510 (1987) [Ark. Stat. Ann. §§ 80-1266.4, 80-1266.9 (Repl. 1980)]; McCarty v. Philadelphia Civil Service Comm’n, 424 U.S. 645 (1976); Wardwell v. Board of Education of Cincinatti, 529 F.2d 625 (1976) (right to travel).

Mrs. McClelland acknowledges this standard and also recognizes that under the federal constitution, she has no constitutional claim. However, she urges that under the Arkansas Constitution and statutes, we should adopt a higher standard of review or hold the policy unreasonable or not rationally related to its purpose.

Similar residency requirements have been consistently upheld as being constitutional. Such policies have been instituted and found valid not only for teachers, but for policemen, firemen and municipal employees generally. Wardwell v. Board of Education, supra; Mogle v. Sevier County School Dist., 540 F.2d 478 (1976); Cook County College Teacher Union Local 1600 v. Taylor, 432 F. Supp. 270 (1977); Carofano v. City of Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985); Simien v. City of San Antonio, 809 F.2d 255 (5th Cir. 1987); Abrahams v. Civil Service Comm’n, 65 N.J. 61, 319 A.2d 483 (1974); and see Annot., Policemen-Firemen Residency Requirements, 4 A.L.R. 4th 38 (1985), § 2; McCarty v. Philadelphia Civil Service Comm’n, supra.

There has been some rejection of school boards’ residency policies. Donnelly v. City of Manchester, 111 N.H. 50, 274 A.2d 789 (1971); Angwin v. City of Manchester, 118 N.H. 336, 386 A.2d 1272 (1978). However, school boards are increasingly requiring employees to maintain residence within the school district and challenges have been rejected by a majority of federal and state courts. 1 Valente, Education Law, § 12.8 (1985).

The standard of review employed in upholding residency requirements has generally been the rational basis test. This was the basis of McCarty, supra, by the U.S. Supreme Court. See Mogle, supra; Carofano, supra; McCarty, supra. This has also been the test used by most courts. See Carofano, supra. And as is pointed out in Carofano, while some courts have found that it was necessary to show more, i.e., the “compelling interest” test, those states nevertheless found the test was met. Krzewinski v. Kugler, 338 F. Supp. 492 (D.N.J. 1972);Fraternal Order of Police v. Hunter, 49 Ohio App. 2d 185, 360 N.E.2d 708 (1975). Nor do continual residence requirements burden the fundamental rights found in the right to travel, i.e., the right to “migrate, resettle, find a new job and start a new life.” Carofano, supra (citing Shapiro v. Thompson, 394 U.S. 615 (1969)).

The weight of authority favors the rational basis test for teacher residency requirements, and appellant has cited nothing from our own cases that would prompt us to adopt a different approach. Under the rational basis standard of review, we must presume the legislation is constitutional, that it is rationally related to achieving a legitimate governmental objective. This presumption imposes upon the challenging party the burden of proving the unconstitutionality of the legislation, i.e., that the act is not rationally related to achieving any legitimate objective of government under any reasonably conceivable state of facts.

Streight v. Ragland, supra.

Legislation which meets [the rational basis test] is not invalid because it is not all-embracing but instead is limited, for example, as to persons, subjects, objects to which the legislation is to be applied, or evils or abuses to be remedied or corrected.
Equal protection is not achieved through indiscriminate imposition of inequalities, but discrimination alone, irrespective of its basis or effect, is not the test of denial of equal protection of the laws by a statute. A discrimination which is merely technical and in no sense substantial or unjust does not render a statute void. City of Piggott, supra.

Mrs. McClelland contends that the policy is discriminatory because it does not apply to non-certified personnel or to part-time employees. The argument is without merit. As stated in City of Piggott, supra, the rule will not be invalid under the rational basis standard simply for the failure to include all who might be encompassed within the policy. Appellant has not shown this exception to be substantial or unjust so as to render the rule wholly arbitrary. As appellee suggests, given the purpose of the rule, it is not unreasonable that the noncertified personnel such as bus drivers or custodians are not required to follow the residency requirement as they are providing services different from those offered by teachers. As to half-time certified employees, there appears to be only one and he worked in two districts. The reason for this exception is plain. The rational basis test does not require rigid adherence, and such exceptions are neither substantial nor unjust. City of Piggott, supra.

Mrs. McClelland also contends the act is selectively applied because she measured the driving distance of two other teachers who lived outside the district and by her measurements they were a short distance beyond the ten mile limit from Paris. There is no merit to this argument. The superintendent testified that to his knowledge, all certified personnel who had been hired since the implementation of the policy, with the exception of the teacher working in two districts, lived within the boundaries, and the court was not required to accept McClelland’s testimony. Moreover, it is not enough to show that a law or ordinance has not been enforced against other persons as it is sought to be enforced against the person claiming discrimination. Mere inequalities in the administration of the law are not, per se, contrary to equal protection. To establish arbitrary discrimination inimical to constitutional equality, there must be a showing of clear and intentional discrimination. 16A Am. Jur. 2d Constitutional Law, § 803 (1979); Deyeso v. City of Alamo Heights, 549 S.W.2d 123 (Tex. Civ. App. 1979); People ex rel. New York v. Macbeth Realty Co., 100 Misc. 2d 926, 420 N.Y.S.2d 252 (1979); and see Coffelt v. Bryant, 238 Ark. 363, 381 S.W.2d 731 (1964). Appellant has made no showing beyond her bare claim of finding two or three other teachers who are on the margins of the district. This fails to show discriminatory administration.

Turning to the right to travel argument, since the argument requires only a rational basis review, in the context of residency requirements, such a review will also encompass appellant’s claim that the rule is unreasonable or arbitrary and capricious under Ark. Code Ann. § 6-17-1510. See Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980). The rule will be upheld if it can be justified by any reasonably conceivable, rational state of facts. Streight, supra; City of Piggott, supra; Partlow, supra.

Appellant first argues that it is unreasonable to require personnel to live within the district or within ten miles of the City of Paris. The district is irregularly shaped and Paris lies in the western extreme. Because of this configuration, some employees of the district live farther from the school than Mrs. McClelland, which she contends points up the irrationality of the policy. But the goals pronounced by the school district are essentially those used in other jurisdictions, see e.g., Simien, supra; Wardwell, supra, and which have consistently been upheld in other jurisdictions. 1 Valente, supra, § 12.8. Those goals are basically community involvement and district identity as it relates to the tax base and support of district tax levies. The latter goal is tied to district residency and not to distance from school, while the former requires only a reasonable commuting distance from the city and not necessarily district residency. The district evidently decided not to restrict employment only to district residents, but in allowing non-district residents to teach, they must meet some other reasonable commuting distance to achieve some aspect of the goals to be served. (Appellant has not questioned the ten mile limit for non-residents as arbitrary.) We find nothing irrational in this formulation.

As a final point, appellant argues there is no relationship between the goals identified by the school board and the policy that was instituted. She claims her performance did not change when she moved, and that one board member testified he observed no change in the teachers’ commitment to the school after the policy was adopted and there was no evidence the policy had accomplished any of its goals. However, appellant misconstrues the test. It is whether there is any conceivable basis for the application of the rule, so that we can say the action was not arbitrary. The burden of establishing that result rests with appellant. City of Piggott, supra; Streight, supra.

In Cook County College Teachers Union, supra, a teacher-residency case, the court was presented with the same argument and faced with much stronger evidence than here, that the policy did not fulfill the desired goals. The court replied:

The short response to this is that the Constitution is not violated so long as a law is not premised upon a patently irrational basis. ‘Judicial inquiry does not concern itself with the accuracy of the legislative finding, but only with the question of whether it so lacks any reasonable basis as to be arbitrary.’ [citations omitted] It may be that this rule is harsh and onerous upon non-resident teachers. It may also be true that the Board could have devised a better rule to achieve its goals, or one ‘more just and humane.’ But so long as it has been held that the reasons advanced are not utterly irrational, the rule cannot be held invalid, [citations omitted] [432 F. Supp. at 273.]

Affirmed.

        See also Policemen-Firemen Residency Requirements, supra, § 5; 1 Valente, Education Law, § 12.8 (1985) (Legislation has been promulgated by some states that prohibits municipalities from passing such residency requirements.); Lanam v. Civil Service Comm’n of City of Ukiah, 145 Cal. Rptr. 590, 80 Cal. App. 3d 315 (1978) (The California Constitution itself provides: “A city or county . . . may not require that its employees be residents of such city, county, or district; except that such employees may be required to reside within a reasonable and specific distance of their place of employment or other designated location.”).


source: Caselaw Access Project

license: Public Domain

text:
    Norman C. YOUNG v. George W. BAILEY
    87-169
    742 S.W.2d 905
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      Matthews & Sanders, for appellant.

      Hatfield, Robinson, Staley, Marshall, Jordan & Shively, by: Robert L. Robinson, Jr., for appellee.
   Steele Hays, Justice.

Appellant asks us to reverse the trial court’s refusal to reduce a verdict for personal injuries recovered by a guest passenger against the host driver for medical expenses and loss of salary paid by the host driver’s insurance carrier, an issue not yet settled in this jurisdiction. For reasons to be explained we decline to reverse.

Around midnight on April 21, 1985 Norman Young and George Bailey were in Young’s pickup truck driving near Alpena, Arkansas. They had been together most of the afternoon and part of the evening, riding around and drinking beer. Several miles south of town the right front tire of the truck went off the pavement prompting Bailey to grab the steering wheel. Young tried to shove Bailey away and in the struggle the vehicle went out of control and both driver and passenger were thrown out.

Bailey’s injuries required nine days hospitalization following surgery to repair a badly damaged liver. Bailey’s medical expenses totaled $12,206.35. He missed two months work as a construction foreman with a loss of income of $2,240.

Young was insured by Shelter Insurance Company. The coverage included $50,000 protection against bodily injury liability, $10,000 medical pay, and income disability protection of 70% of lost earnings. As a passenger in the vehicle, Bailey became an insured under the policy and as such received reimbursement from Shelter for his medical expenses ($10,000 was paid under the medical pay coverage and the balance, $2,206.35, under the liability coverage). Bailey also received $2,240 from Shelter under the income disability coverage.

In October, 1985 Bailey filed a personal injury suit against Young for $ 150,000. Young did not plead payment or set-off and made no attempt in trial to show that Shelter had paid Bailey’s medical expenses and part of his salary loss. Thus, Bailey’s proof of pecuniary loss totalling $14,446.35 was unchallenged and the jury returned a general verdict awarding Bailey the sum of $24,446.35.

Following the trial Young filed a motion for a credit of $14,333.35 against the amount awarded based on the sums paid to Bailey under Shelter’s coverage with Young. The trial court allowed a credit of $2,037.35 (evidently that part of the medical expense paid under the bodily injury coverage) and entered judgment for the balance, or $22,409. Whether the trial court was correct in refusing to credit the entire amount paid by Shelter is the sole issue on appeal. We affirm the trial court.

Young points out that while the jury found that Bailey was entitled to the sum of $24,446.35 for his injuries, the trial court’s refusal to credit the payments already made under the policy results in a recovery of $36,767.35 by Bailey, which Young contends is unjust and against public policy. Young also argues that Bailey’s reliance here and below on the case of State Farm Mutual Automobile Insurance Co. v. Sims, 288 Ark. 541, 708 S.W.2d 72 (1986) is misplaced. We agree that Sims, while similar, involves a different issue than the case before us and does not settle the question presented. In Sims, Cook was injured while riding as a passenger in a car insured by State Farm. By way of settlement State Farm paid Cook $25,000, the policy limits for bodily injuries, and when Cook demanded $5,000 under the medical pay provision of the policy, State Farm refused the demand, contending that under its policy it was entitled to credit any payments made under the medical pay coverage against the bodily injury coverage, and having paid the bodily injury limits to Cook, it had exhausted its exposure under the policy. The trial court rejected the argument, holding that the provision allowing a set-off was void as against public policy. We affirmed on appeal on the premise that to uphold State Farm’s position in the case would effectively abrogate Ark. Stat. Ann. § 75-1427 (Repl. 1979) by reducing the compulsory coverage for bodily injury liability in Arkansas from $25,000 to $20,000. Thus, the issue in Sims was not duplicate payments, there being no evidence that State Farm was being required to pay medical expenses twice under its coverage.

This jury returned a general verdict for Bailey after being instructed without objection that if it found for the plaintiff to consider four elements of damages: medical expenses (AMI 2204), loss of income (AMI 2206), the nature, extent, duration and permanency of Bailey’s injuries (AMI 2202), and any pain and suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future (AMI 2205). There was substantial evidence that Bailey’s injuries were life-threatening, as well as painful and permanent and we could not say the verdict was excessive. While it is true the verdict partially coincided with the exact figures of the pecuniary damage, it is impossible to state with certainty what part of the total verdict was attributable to out-of-pocket expenses. It may be the jury intended to award the expenses plus $ 10,000, but that assumption cannot be reached except by conjecture. Had the case been submitted on interrogatories specifying the damages awarded, that particular problem might have been avoided. But it was not, and we are unwilling to speculate at the expense of the successful litigant.

A similar development occurred in Check v. Meredith, 243 Ark. 498, 420 S.W.2d 866 (1967) where Mrs. Meredith sued for property damage and medical expenses on behalf of two children, Joyce and Robert. Her damages were $600 for her car, $710.26 for medical expenses for Joyce and $682.55 for medical expenses for Robert. The jury awarded Mrs. Meredith $1,500, Joyce $6,000, and Robert $3,500. The defendant argued on appeal that the medical expenses were recovered both by the children and by Mrs. Meredith since the court had included the medical expenses under AMI 2201, “which was properly given twice, once for Joyce and once for Robert.” The argument was rejected on appeal because the appellant did not object to the instructions on damages or to the method by which those issues were submitted to the jury.

Affirmed.

       At a pretrial conference Young questioned whether he was entitled to a credit against any recovery for the amounts already paid to Bailey. Counsel were instructed to brief the point in advance of trial. If any action was taken on this issue prior to trial, it is not reflected in the record.


author: David Newbern, Justice. Darrell Hickman, Justice,

text:
    Terry L. BISHOP v. STATE of Arkansas
    CR 87-121
    742 S.W.2d 911
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      Maxie G. Kizer, for appellant.

      Terry L. Bishop, pro se.

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

This case has come to us as an appeal in which counsel for the appellant has determined, upon examination of the record, that there is no reversible error. He has filed a “no merit appeal” brief in accordance with Anders v. California, 386 U.S. 738 (1967). He also has moved to be relieved as counsel pursuant to Rule 11(h) of the Arkansas Supreme Court and Court of Appeals, upon certification that he has conscientiously examined the record and found the appeal to be without merit. The attorney general has submitted a brief concurring in the conclusion that the appeal lacks merit. The appellant, Terry L. Bishop, has submitted a supplemental brief, pro se, contending first that the evidence was insufficient to support his conviction of aggravated robbery because there was no evidence that he intended to commit robbery at the time he allegedly assaulted the victim. Secondly, he contends his counsel was ineffective. We do not consider the latter contention, as it is not cognizable on appeal. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981 ).Cf. Lasiter v. State, 290 Ark. 96, 717 S. W.2d 198 (1986). We find the evidence was not sufficient to sustain the aggravated robbery conviction but that it was sufficient to sustain a conviction of aggravated assault. The conviction is affirmed as modified and the sentence is accordingly also modified.

The evidence shows that Bishop and a companion entered a liquor store. Bishop approached Jodie Mahfouz, who was working behind the counter, with a bottle of wine and asked the price. Mahfouz asked Bishop for identification. Bishop turned as if to walk away, but abruptly turned back and swung the bottle at Mahfouz’s head. Mahfouz ducked, and Bishop jumped up on the counter, knocking the cash register to the floor in the process. He swung again at Mahfouz who had obtained a pistol with which he shot Bishop who was later arrested and charged with aggravated robbery.

At the time the alleged offense was committed, aggravated robbery was defined by Ark. Stat. Ann. § 41-2102 (Supp. 1985) as follows: “(1) A person commits aggravated robbery ifhe commits robbery as defined in Section 2103 of Act 280 of 1975 (Arkansas Statutes Annotated § 41-2103) and he: . . . (b) inflicts or attempts to inflict death or serious physical injury upon another person.” Robbery was defined in § 41-2103 as follows: “(1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” As the commission of robbery is an element of the offense of aggravated robbery, the evidence, to have been sufficient, must have shown that Bishop attempted to inflict serious physical injury upon Mahfouz with the purpose of committing theft.

There is no doubt the evidence was sufficient to show an attempt to inflict serious physical injury upon Mahfouz. That leaves only the question whether the evidence was sufficient to show Bishop intended to commit theft when he swung the bottle at Mahfouz. A police officer testified at the trial that the appellant’s mother told him that Bishop told her the reason he robbed the store was that he needed the money for Christmas. Bishop’s counsel objected to this testimony on the ground that the officer testifying was not the one who prepared the written investigation account of what was said by Bishop’s mother. The officer who had prepared the report was then called as a witness, and he gave substantially the same testimony as the other officer had given. While this testimony was subject to a hearsay objection, none was made. Excepting testimony from Mr. Mahfouz that he surmised Bishop and his companion intended to kill him or to rob the store, no other evidence tending to show the intent to commit theft was admitted.

We have no hesitancy in saying that the policeman’s testimony as to Bishop’s mother’s statement was admissible against him in the absence of objection, as the objection may not be made for the first time on appeal. See Janes v. State, 285 Ark. 279, 686 S.W.2d 783 (1985); Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977). Nor do we doubt that unobjected to hearsay evidence may constitute substantial evidence sufficient to support a conviction. Murray v. State, 275 Ark. 46, 628 S.W.2d 549 (1982); Arkansas State Highway Commission v. Bradford, 252 Ark. 1037, 482 S.W.2d 107 (1972). However, Ark. Code Ann. § 16-89-111(d) (1987) provides: “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” Thus, if Bishop’s statement to his mother was a “confession,” as that term is used in § 16-89-111(d), the argument is that the evidence falls short of being sufficient to sustain the conviction as there is no other evidence that Bishop intended to commit theft.

In Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986), we held in very similar circumstances that the evidence did not support a conviction of aggravated robbery, and we reduced the sentence to one appropriate for first degree battery. However, in that case the confession was a typical confession to police officers after the accused had been apprehended. Trotter made his statement in the presence of two sheriffs, a state police investigator and a sheriffs investigator. There is thus a temptation to say that Bishop’s statement to his mother was not the sort of “confession” the general assembly had in mind when it stated that an extra-judicial confession would not support a conviction “unless accompanied with other proof that such an offense was committed.” This provision first appeared in Arkansas law as § 239 of the Criminal Code of 1868. There was no emergency clause or other document descriptive of legislative intent. We are thus relegated to the traditional meaning of the word “confession”.

In Edwards v. State, 171 Ark. 778, 286 S.W. 935 (1926), the defendant told his wife, in the presence of a deputy sheriff to go out and borrow more money because when he got out of jail he would “rob another bank” and they would then have plenty of money. We said that statement, made to Edward’s wife and in the presence of a deputy sheriff, was in the nature of a confession. In Workman v. State, 267 Ark. 103, 589 S.W.2d 21 (1979), we dealt with the claim of an appellant who said that statements she made to officials in the process of hindering apprehension or prosecution of a robber were the same as a confession with respect to which she had been deprived of a Denno hearing. We held the statements were not a confession or confessions and said, “[a] confession is an admission of guilt as to the commission of a criminal act.” We find no authority whatever for the proposition that a statement of guilt must be made to police officers, or indeed to any other particular person or persons, to constitute a confession.

As the offense of robbery was an element of the offense of aggravated robbery, it was incumbent upon the state to prove the intent of Bishop to commit theft when he struck at Mahfouz with the bottle. The only evidence of that intent is Bishop’s statement to his mother. That was a confession. Absent corroboration it does not warrant conviction. Bishop’s counsel raised the issue by moving for a directed verdict and stating specifically that the evidence was insufficient to show robbery.

As we cannot sustain the conviction of aggravated robbery, the question becomes whether the evidence was sufficient to warrant conviction of a lesser included offense. In Trotter v. State, supra, we reduced the conviction of aggravated robbery to one for first degree battery. We recognized that battery is not in the same generic class as robbery, and that it thus was not a lesser included offense in the sense of our statement in Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972). However, we noted that first degree battery “overlapped” with aggravated robbery in that a person charged simultaneously with both offenses arising from the same incident could not be convicted of both. Cf. Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984).

Our statute defining lesser included offenses for purposes of prosecution and conviction is Ark. Code Ann. § 5-1-110 (1987). It provides, in part, “(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if: (1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; . . . .”

The definition of aggravated assault was codified at the time the offense in this case was alleged as Ark. Stat. Ann. § 41-1604 (Repl. 1977). It provided, in pertinent part, “[a] person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.” The definition of aggravated robbery, as found in Ark. Stat. Ann. § 41-2102 (Supp. 1985), was, in pertinent part, as follows:

(1) A person commits aggravated robbery if he commits robbery . . . and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person.

Although we know of no cases which hold that one may not be convicted of both aggravated robbery and aggravated assault arising from the same incident, the two offenses overlap just as we found aggravated robbery and first degree battery overlapping in Trotter v. State, supra. While the definition of aggravated assault contains more words than subsection (b) of § 41-2102, we hold that it amounts to no more than “attempts to inflict death or serious physical injury upon another person” and thus is included within that definition.

When the proof is such as to support conviction of a lesser included offense but not the offense of which the accused was convicted, we may reduce the punishment to the maximum for the lesser included offense, or reduce it to the minimum for the lesser offense or something in between, depending upon the circumstances. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). In this case, we deem it appropriate to reduce the sentence from 70 years imprisonment to the maximum appropriate for the lesser included offense of aggravated assault which was, at the time the offense was committed, a class D felony. The maximum sentence for one convicted of a class D felony with four or more other felony convictions is 15 years imprisonment. Accordingly the sentence is reduced from 70 to 15 years.

Affirmed as modified.

Hickman, Hays, and Glaze, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I dissent for several reasons.

The majority in this case, as in Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1984), has forgotten its appellate role which is to review cases and affirm them if possible, rather than look for a reason to reverse a decision. The majority in this case, as in Trotter, has reversed a decision for a reason not raised on appeal. When the officer who had prepared the report testified regarding what the appellant’s mother had told the two officers, no objection was made; that evidence is substantial evidence and can support a verdict. No argument was made below or on appeal whether the statement made to the mother was a “confession.” That is a legal question the majority decided to answer on its own.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984). The majority seems to require that there must be a confession plus independent substantial evidence to support a conviction. However, that is not the law. We have held, “The statute does not require the corroborating evidence to be independently sufficient to support a conviction. Instead it requires only corroborating evidence that such an offense was committed.” Morgan v. State, 286 Ark. 264, 691 S.W.2d 164 (1985). That is not a requirement that substantial evidence prove the offense was committed — only evidence that it was committed. The statute reads:

A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.

Ark. Stat. Ann. § 43-2115 (Repl. 1977). The majority question the absence of evidence to prove the element of intent in the crime of robbery. Evidently the majority requires independent substantial evidence other than a confession of every element of a crime, and that is not the requirement of the statute. See Stickley v. State, 294 Ark. 44, 740 S.W.2d 616 (1987).

That fundamental error is compounded when the same approach which was taken in Trotter is taken in this case, and that is that a jury cannot infer intent from the actions of the defendant. That is a marked departure from existing law. We have held, “[i]ntent or purpose behind an act, being a state of mind can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances surrounding the act.” Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985).

In this case there was evidence offered at trial that two men entered a liquor store. Both went to the wine cooler. After picking up a bottle of wine, the appellant walked to the counter and asked the owner how much it cost. Mr. Mahfouz, the owner, testified that the appellant tried to hit him in the head twice before Mr. Mahfouz shot him in the leg. There was also testimony offered that showed that there was a third man, Tony, who waited outside the store while the other two went inside to buy some “cigarettes.” However, neither man inside the store picked up any “cigarettes” or asked for any.

In my judgment the majority is holding a juror cannot use his common sense in deciding cases. The jury was clearly convinced by the appellant’s actions that the appellant intended to rob the store and so was the store owner.

This question was asked of Mr. Mahfouz, the store owner:
Q. I just heard your testimony and not one. . . but not one time did you say anything about Terry Bishop trying to rob you.
A. Well what would you think in that situation with a man trying to hit you in the head. What did he hit me in the head for?

Robbers need to tell shopkeepers “stick ‘em up, this is a robbery” to convince the majority a robbery is intended. Only the majority is in the dark in this case.

Hays and Glaze, JJ., join in the dissent.


author: David Newbern, Justice.

text:
    CITY OF FORT SMITH v. Chris DRIGGERS
    87-240
    742 S.W.2d 921
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      Daily, West, Core, Coffman & Canfield, for appellant.

      Pryor, Barry, Smith & Karber, by: Gregory T. Karber, for appellee.
   David Newbern, Justice.

The appellants, the City of Fort Smith and its civil service commission, hereafter referred to collectively as “the city,” contend it was error to hold as a matter of law that the appellee, Chris Driggers, was entitled to promotion to the rank of captain in the Fort Smith Fire Department in 1983. We hold that because there was a remaining material issue of fact it was inappropriate for the trial court to grant a summary judgment in favor of Driggers, and thus the judgment is reversed and the case remanded.

It is undisputed that in 1983, Chris Driggers made the highest score on the Fort Smith Fire Department competitive examination for promotion to the rank of captain. However, the names of others who had passed the examination were placed ahead of Driggers’ name on the promotion eligibility list because they were senior to him in length of service. Others were promoted to captain during the year in which the list remained effective, but Driggers was not promoted.

Prior to 1967, Fort Smith was governed by a commission. Act 138 of 1957, presently codified as Ark. Code Ann. § 14-53-109 (1987), provides that eligibility for promotion within the fire department of a city of the first class having the commission form of government is to be determined on the basis of seniority among those who have passed a competitive examination held for the higher grade.

In 1967, Fort Smith adopted a city administrator form of government. The reorganization was conducted pursuant to Act 36 of 1967, now codified as Ark. Code Ann. §§ 14-48-101 through 14-48-131 (1987). Section 7 of that act, found in Ark. Code Ann. § 14-48-102 (1987), provides that upon a change in government the city remains subject to all laws in effect on the date of the change [§ 14-48-102(a)] and that “[a]ll bylaws, ordinances, and resolutions lawfully passed and in force in the city under its former organization and not in conflict with this chapter shall remain in force until altered or repealed by the board elected under the authority of this chapter [§ 14-48-102 (d)]The city’s contention is that, subsequent to its change in government in 1967, and continuously through 1983and until 1986,it had based its fire department promotions on seniority among those who had passed the examinations as it was authorized to do under § 14-48-102.

Mr. Driggers contends that prior to 1967 the city adopted rules for promotion in the fire department, effective until 1969, which did not recognize seniority as a basis for promotion. He argues that the city thus cannot rely on the transition or savings provisions of § 14-48- 102(d), whether the provision disregarding seniority was in effect at the time the government form changed or came about through repeal or alteration of the rules which were in effect in 1967. He contends that as of 1983, the process of fire department promotions in Fort Smith was governed by the provisions of Ark. Code Ann. §§ 14-51-301 (b)(6)(A) and (b)(9)(A) (1987), formerly Ark. Stat. Ann. § 19-1603 (Repl. 1980). In Bradley v. Bruce, 288 Ark. 342, 705 S.W.2d 431 (1986), reh’g denied, 288 Ark. 343-A, 713 S.W.2d 451 (1986), we held that those subsections required civil service promotions to be based only on examination scores and not on seniority. The Bradley case did not concern promotion in a fire department of a first class city which had formerly been governed by a commission, thus there was no question of applicability of the transition statute, and the case is not controlling unless we find that the transition statute is inapplicable to the case before us now.

1. Remaining issue of material fact

As Driggers was the moving party, it was incumbent upon him to demonstrate his entitlement to a summary judgment by showing there was no remaining material issue of fact. Ark. R. Civ. P. 56. He contends he did so by virtue of inclusion in the record of Fort Smith civil service rules adopted prior to and effective until 1969 which provided for promotions in the fire department without reference to seniority. While it is true that the record contains such a document, there was no affidavit of authenticity, and nothing among the documents which may be considered in deciding a motion for summary judgment showed that the rules were adopted. The rules document was, according to the city’s brief, provided to Driggers’ counsel by counsel for the city by way of “informal discovery.” It is not authenticated in any way, and it appears more like a draft of a set of rules with numerous apparent deletions and mark-throughs.

Another unauthenticated document purports to be the set of rules adopted in 1969 which clearly includes seniority as a criterion for promotion. Yet another set of rules adopted in 1974, this one authenticated in relevant part by testimony of the city’s personnel director, included the seniority criterion. The personnel director testified that those rules were adopted in 1974 and remained in effect until May 14, 1986.

In opposition to Mr. Driggers’ motion for summary judgment, the city presented the affidavit of Fort Smith Fire Chief Jim Moore who stated that he had been a member of the department since 1949 and that from 1957 until 1986 promotions within the department had been based upon seniority of those who had successfully completed the appropriate examinations. He specifically stated that no change in that respect occurred when the city government form changed in 1967.

The city contends there is an issue of fact remaining as to whether, in the words of § 14-48-102(d), the rules providing for seniority as a criterion for promotion have been “altered or repealed.” Driggers contends that the document purporting to be the rules in effect up until 1969 shows there was such an alteration or repeal or, presumably, that the city had no rule basing promotions on seniority at the time the government form was changed in 1967. His position is that the document is “evidence” because it was provided to him by counsel for the city who stated in court, “I don’t know whether it’s accurate or not but it’s probably accurate — they probably had rules that didn’t say anything about seniority but it was still the law.” Driggers’ brief states at one point that the pre-1969 and the 1969 rules documents were provided to him in response to a specific discovery request. However, he does not say what the request was, and neither party abstracted any such discovery request or response.

The point to be observed here is that Driggers was the party moving for summary judgment. It was his burden to show that there was “no genuine issue as to any material fact and that ... [he was] entitled to a judgment as a matter of law.” Ark. R. Civ. P. 56(c). To accomplish such a showing, it was Driggers’ burden to demonstrate that at some time after 1967 the city based fire department promotions on something other than seniority among candidates who had passed the appropriate examinations. The unauthenticated document purporting to show what the rules were up to 1969 was insufficient to show the rules had been altered or repealed in that respect or that the city had had no seniority criterion in effect at the time it changed government forms.

In Organized Security Life Insurance Co. v. Munyon, 247 Ark. 449, 446 S.W.2d 233 (1969), the insurance company attempted to support its motion for summary judgment by an affidavit of its attorney of record stating that a certain “waiver rider” was attached to and part of an insurance policy. In holding that the document was not established as a part of the policy by the attorney’s affidavit, we stated:

He did not state in his affidavit, when he became attorney for appellant, that he had personal knowledge of the attachment of the waiver rider or, if he did, how he acquired this knowledge. An affidavit by an attorney is not to be considered under summary judgment procedures when the affidavits do not show that the attorney had personal knowledge of the facts set out and that he was competent to testify to them. Ark. Stat. Ann. § 29-211(e) (Supp. 1967) [other citations omitted].
It must be affirmatively shown, or appear from statements contained in any affidavit supporting or opposing a summary judgment, that it is based upon personal knowledge of the affiant, that the facts stated therein would be admissible in evidence and that the affiant is a witness competent to state these facts in evidence, [citations omitted] [247 Ark. at 456, 446 S.W.2d at 237].

The “personal knowledge” requirement formerly found in superseded § 29-211 is now found in Ark. R. Civ. P. 56(e). Not only did the city’s counsel not make an affidavit as to the authenticity of the purported pre-1969 rules, his statement was that he lacked personal knowledge of the matter, and it is clear that the document in the form it was presented to the court was not admissible into evidence.

The document was not self-authenticating under any of the provisions of A.R.E. 902, and although the counsel for the city identified it as a document which had come from the files of his law firm and had writing on it which was in the hand of his partner, a former city attorney, that did not constitute identification by testimony of a witness “having knowledge” as described in A.R.E. 901 (b) (1). Counsel for the city specifically said he did not have knowledge of the authenticity of the purported rules in effect up until 1969.

We view the proof submitted with a motion for summary judgment most favorably to the party resisting the motion and we resolve doubts and inferences against the moving party. Township Builders, Inc. v. Kraus Constr. Co., 286 Ark. 487, 696 S.W.2d 308 (1985); Leigh Winham, Inc. v. Reynolds Ins. Agency, 279 Ark. 317, 651 S.W.2d 74 (1983). We hold there was a remaining material issue of fact as to the city’s promotion rules for fire department personnel as of 1967 and whether the city had repealed or altered the rules after its change in government in 1967 so as to do away with the seniority criterion. The unauthenticated document purporting to state rules in effect prior to 1969 and submitted with Driggers’ motion for summary judgment did not preclude the issue in the face of the affidavit of Jim Moore stating there had been no change in this respect from 1957 until 1986.

2. The 1969 and 1974 rules

Driggers argues that, regardless of the content of the rules between 1967 and 1969, when the city adopted comprehensive civil service rules in 1969 and again in 1974, it was unlawful for it to include the seniority criterion for promotion of fire department personnel under its city administrator form of government. It is acknowledged that rules were adopted by the city in 1974, and it is clear that the seniority criterion was contained in them. Assuming, as we must for purposes of this argument that the seniority criterion had been present from 1957 forward, we are not inclined to hold that the 1974 version of the rules “altered or repealed” this provision absent the citation of authority in support of such a holding. Mr. Driggers has provided no such authority.

3. Repeal by implication

Mr. Driggers asks us to hold that Act 97 of 1959, § 1, impliedly repealed § 14-48-102, pursuant to which the city contends it continued its seniority criterion, by repealing the exemption of cities of the first class from the requirements of other civil service statutes. It is enough to say that Act 97 of 1959 did not purport to affect the provisions of § 14-48-102 which permitted the city to continue to act according to the laws governing its former form of government. The argument is that by repealing the exemption of the cities of the first class from the requirements of some of the civil service laws it was implied that all their civil service laws must be uniform regardless of their form of government. Repeal of statutes by implication is not favored. Riceland Foods, Inc. v. Second Injury Fund, 289 Ark. 528, 715 S.W.2d 432 (1986); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). We find no legislative intent to repeal § 14-48-102.

4. Waiver

The city argued that even if it were held that § 14-48-102 did not apply to permit it to continue to use its seniority criterion for the promotion of fire department personnel who had passed the appropriate examinations Driggers waived whatever right to promotion he might have had in 1983 by failure to assert it until after our decision in Bradley v. Bruce, supra. We have no idea whether waiver will become an issue upon remand of this case because we do not know how the factual issue with respect to the city’s rules on seniority will be decided. Additionally, no facts were developed on this issue in the summary judgment contest except a statement in the personnel director’s affidavit that during the time the 1983 promotion list was in effect Mr. Driggers did not contest the fact that he was not promoted. Therefore, we decline to consider the issue.

Reversed and remanded.


text:
    Jack Ray HOPES v. STATE of Arkansas
    CR 87-183
    742 S.W.2d 561
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988
    [Rehearing denied February 22, 1988.]

      Jeff Rosenzweig, for appellant.

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

The appellant, Jack Ray Hopes, was convicted of second degree murder and sentenced to five years imprisonment. He raises two points of appeal. First, he contends the court erred in refusing an instruction he proffered. The instruction would have defined “dwelling” as including the curtilage in the context of the statute permitting the use of deadly force in self-defense without retreat in one’s dwelling. We find no error, as the instruction proffered was not a correct statement of the law. The second allegation is that the judge erred by recalling the jurors to the courtroom during their deliberation and inquiring as to the numerical division of their vote at that time. We find the judge’s actions were neither coercive of the jury, as the appellant contends, nor otherwise prejudicial. The conviction is affirmed.

Hopes and Gary Roper, the victim, were neighbors. They lived in a duplex; Hopes on one side apartment and Roper on the other. Each side, or apartment, had a separate front porch. Hopes testified that he was unloading his roofing equipment from his truck at the end of a work day when Roper arrived at the duplex. Roper called him a “punk,” and Hopes responded by saying they should try to get along, whereupon Roper, who was standing on his front porch, spat on Hopes, who was standing on the porch on his side of the building. Hopes tried to spit on Roper, but could not spit far enough. Hopes testified that Roper then told him to wait while he went into his apartment. Roper came out of his apartment with a gun and was coming across to Hope’s front porch firing the gun.

Hopes said he (Hopes) carried a gun because of having to carry large amounts of money in his business. He removed the gun from his side and fired at Roper. He then went to Roper’s body and struck Roper once with the gun.

The testimony of an associate state medical examiner showed that Roper’s body was shot in thirteen places. Police testimony showed that when Hope’s gun was recovered it was bent, and a part had to be straightened in order to perform ballistics tests. Another witness testified he saw Hopes raising his hand above “someone” and bringing it down twice, as if to strike the body, after the shooting.

Hopes did not deny the shooting when the police arrived at the scene. He took them inside his apartment and gave them his semi-automatic pistol. Another pistol, which was apparently the one used by Roper, was found outside. It contained one shell from which the bullet had been fired and one from which the bullet had not been fired.

Self-defense

The defense of justification or self-defense using deadly force is the subject of Ark. Code Ann. § 5-2-607 (1987) which provides, in pertinent part:

(a) A person is justified in using deadly physical force upon another person if he reasonably believes that the other person is:
(1) Committing or about to commit a felony involving force or violence; or
(2) Using or about to use unlawful deadly physical force.
(b) A person 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:
(1) By retreating, except that a person is not required to retreat if he is in his dwelling and was not the original aggressor, ....

On the basis of the evidence raising this statutory defense, Hopes asked that the following instruction be given:

“Dwelling” means a space that is used or intended to be used on a temporary or permanent basis as a human habitation, home, or residence, and includes what is known as the curtilage, which is the space, necessary and convenient and habitually used for the family purposes and the carrying on of domestic employments.

That proffered instruction was refused, and the court instead gave the following definition of “dwelling” found in AMCI 4105: “ ‘Dwelling’ means an enclosed space that is used or intended to be used, on a temporary or permanent basis, as a human habitation, home or residence; . . .

Hopes’s argument on this point has two parts. He first contends that a front porch qualifies as a dwelling and the court erred in failing so to instruct the jury. He cites no authority supporting the conclusion that a porch should be considered the same as a “dwelling.” We have found State v. Bonano, 59 N.J. 515, 284 A.2d 345 (1971), in which the New Jersey Supreme Court held that a defendant who stood in his doorway was entitled to retreat no further and said:

At this time, however, we limit our acceptance of this rule to those cases where the defendant is actually in his dwelling house. A porch or other similar physical appurtenance is deemed to come with the concept. [284 A.2d at 347]

In that opinion, however, it appears that the court was dealing with common law retreat doctrine rather than with a statute like ours. While we find no evidence that the porch in this case was “enclosed” or so constructed as to be even temporarily “habitable,” we need not make any such decision. No instruction to the effect that a porch is a dwelling was proffered. The trial court is not required to give a specific instruction that is not requested. Schwindling v. State, 269 Ark. 388, 602 S.W.2d 639 (1980).

The next part of the argument concerns the failure to give the proffered instruction defining “dwelling” as inclusive of the curtilage. In David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985), we rejected the argument that the word “dwelling” in our self-defense statute included the curtilage. We said the statute “. . . defines ‘dwelling’ as an enclosed space that is used or intended to be used, on a temporary or permanent basis, as a human habitation, home or residence. The AMCI instruction represents an accurate statement of the Arkansas law [286 Ark. at 213, 691 S.W.2d at 140].” Hopes recognizes that decision, but asserts that the David case involved a shooting in a yard rather than on a porch. Had he wished the trial court to consider whether, as a matter of law, a porch is part of a dwelling and thus a place where one may use deadly physical force in self-defense without retreating, we say again Hopes should have sought such an instruction rather than raise the matter on appeal for the first time.

Hopes cites Ark. Code Ann. § 5-2-620 (1987), which was adopted by the general assembly in 19 81, for his assertion that we should so liberalize our interpretation of our self-defense statute as to say his actions were justified. That statute provides:

(a) The right of an individual to defend himself and the lives of persons or property in his home against harm, injury, or loss by persons unlawfully entering or attempting to enter or intrude thereupon is reaffirmed as a fundamental right to be preserved and promoted as a public policy in this state.
(b) There shall be a legal presumption that any force or means used to accomplish such purpose was exercised in a lawful and necessary manner, unless that presumption is overcome by clear and convincing evidence to the contrary.
(c) The above-stated public policy shall be strictly complied with by the courts, and appropriate instructions thereof shall be given to juries sitting in trial of criminal charges brought in connection therewith.

In Doles v. State, 280 Ark. 299, 657 S.W.2d 538 (1983), we discussed § 5-2-620 and concluded that there is a legal presumption that deadly force used in self-defense in one’s own home is justified unless overcome by clear and convincing evidence. The comment to AMCI 4105 discusses the statute and points out that it has no real effect, as the state must prove guilt beyond a reasonable doubt and that the “clear and convincing evidence” standard for overcoming the presumption adds nothing to the state’s burden. See also Clark v. State, 15 Ark. App. 393, 695 S.W.2d 396 (1985). As far as this statute may implicate the basic right to defend without retreat, we note that it says a person may exercise that right “in his home,” and that is consistent with § 5-2-607(b)(l) and AMCI 4105.

Hopes cites Sanders v. State, 264 Ark. 434, 572 S.W.2d 397 (1978), in which we held that property located on one’s person, at one’s residence, or within the curtilage surrounding the residence may not be seized without a warrant. He does not explain, however, how the right to be free of seizure of property without a warrant is connected to the right to use deadly force in self-defense. Even if there were a satisfactory explanation and inspired case precedent for it, we doubt that it would be sufficient to overcome the statutory limitation on the right of self-defense. At least one other state has held that the common law right to use deadly force in self-defense does not extend to the curtilage, State v. Gardner, 606 S.W.2d 236 (Mo. Ct. App. 1980), and at least one has held that it does, State v. Bottenfield, 692 S.W.2d 447 (Tenn. Crim. App. 1985). Wenote, however, that those opinions referred to no statutory definition or other constraints.

The trial court did not err in declining the proffered instruction to the effect that “dwelling” included the curtilage, and it did not err in failing to instruct that the “dwelling” included the porch.

The judge and the jury

The jury began its deliberations at 3:25 p.m. Apparently there was some discussion off the record of calling the jurors back into the courtroom to ascertain their progress. At 6:05 p.m., the record shows a statement by Hopes’s counsel objecting to the court making an inquiry of the jurors. At 6:10 p.m., the jurors were returned to the courtroom, and the judge asked the foreman to tell him how the jury was divided, by number only, without revealing the preferences represented by the numbers. He wished to know only, for example, if the jury was divided seven to five without being told which way the seven or the five had voted. The foreman reported they were ten to two. The judge then asked them to return to the jury room and to decide whether they wished to continue deliberations into the evening or to stop and begin afresh the next morning. The jurors returned to the jury room and deliberated for more than an hour after which they adjourned for the night.

Hopes contends that this conduct by the judge was prejudicially coercive of the jurors. He cites Tarry v.State, 289 Ark. 193, 710 S.W.2d 202 (1986); Williams v. State, 264 Ark. 77, 568 S.W.2d 30 (1978); and Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971). In those cases we held that Ark. Code Ann. § 16-89-125(3)(e) had been violated and that the violations constituted error. Section 16-89-125(3)(e) provides that the judge, in responding to a question by the jurors, must bring them into the courtroom in the presence of, or with notice to, counsel. That section does not apply to the point made by Hopes here. Neither does Ark. R. Crim. P. 33.4 which deals with recalling the jurors for the purpose of giving additional instructions.

In Murchison v. State, 153 Ark. 300, 240 S.W. 402 (1922), we stated that, while the practice of inquiring how the jurors stand numerically is not commendable, it may be done in such a way as to not constitute error. See also Eady v. State, 168 Ark. 731, 271 S.W. 338 (1925).

It is obvious to us that the judge’s concern in this case was motivated by the approaching dinner hour and his consideration of the comfort of the jurors, court personnel, counsel, and others who could not or would not wish to leave the vicinity of the court while deliberations continued. In Beale v. United States, 263 F.2d 215 (5th Cir. 1959), the judge conducted an inquiry similar to the one conducted in this case. The court of appeals said: “While we think it clear that the better practice is to avoid making such inquiries, it is equally clear here that the trial judge was actuated by solicitude for the jury, to arrange a suitable luncheon hour, and not by a desire to pry into or influence their deliberation.”

We find no error. While we again say it is not a proper practice to inquire of the jurors how they may stand numerically, the manner of the inquiry made here demonstrated no coercive motive on the part of the judge, and nothing in the record shows that Hopes was prejudiced in any way by it.

Affirmed.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    Claude MOORE and Johnny Moore v. LUXOR (NORTH AMERICA) CORPORATION
    87-223
    742 S.W.2d 916
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      Wright, Lindsey & Jennings, for appellants.

      Rose Law Firm, A Professional Association, by: David L. Williams, for appellee.
   David Newbern, Justice.

The Appellee, Luxor (North America) Corporation, prevailed in its action against the appellants, Claude Moore and Johnny Moore, for breach of their personal guaranties with respect to credit extended to a business operated by them. Both Claude and Johnny Moore, who are not related, answered Luxor’s complaint, but Claude Moore did not defend further. In this appeal, Johnny Moore contends that Luxor should not have prevailed because it is a Washington corporation which has not qualified to do business in Arkansas and thus is not entitled to enforce its contract in our court because of the penalty provision of the Wingo Act, Ark. Stat. Ann. § 64-1202 (Repl. 1980). He also contends the trial court erred in finding that Luxor had no duty to repossess its collateral and thus reduce his liability under his guarantee agreement. We affirm the judgment in favor of Luxor, as we conclude the trial judge was correct in ruling, based upon the evidence before him, that the Wingo Act provided no defense, and in holding that Luxor owed no duty to its guarantors to repossess collateral prior to proceeding to enforce the personal guaranties.

Claude and Johnny Moore formed a business, located in Little Rock, to sell television satellite reception equipment. Luxor agreed to allow the Moores’ company, Moore Distributing, Incorporated, to become its distributor but required a security agreement as well as personal guaranties on the part of Claude and Johnny Moore before shipping equipment to them on credit.

Luxor sold equipment to Moore Distributing, Inc., from July 3, 1985, to October 1, 1985. On October 10, 1985, Claude and Johnny entered an agreement dissolving their business relationship. Johnny Moore testified that the agreement provided that he would take some of the equipment and be entitled to take over the secondary operation they had established in Jonesboro, and Claude Moore was to remain with the business in Little Rock. As between Claude and Johnny, Claude was to be responsible for the company’s outstanding obligations to Luxor, although their written agreement recognized they both remained legally liable to Luxor. Johnny Moore testified that he knew at that time that Claude would not pay Luxor for the equipment, and he called Luxor and told the person in the Luxor office with whom he spoke that he would no longer be responsible for Moore Distributing, Inc., and its obligation to Luxor. He wanted Luxor to pick up its equipment, but Luxor did nothing. He testified he was told by a Luxor employee that Luxor was aware of both sides of “the story” and would continue to do business with Claude Moore. Luxor filed its complaint against Claude and Johnny Moore in February, 1986, alleging breach of their personal guarantee agreements and an obligation of $82,223.98.

Johnny Moore’s answer admitted that he executed a personal guarantee agreement, but asserted that he was without sufficient information to know whether the affidavit attached to the complaint was an accurate statement of the Moore Distributing account with Luxor. He also asserted his defense based on the Wingo Act and contended that Luxor had waived its right to proceed against him by failing to pick up its equipment and by sending additional equipment, after notice of his disassociation from Moore Distributing, Inc. Luxor’s evidence consisted of the testimony of Robert McGinnes, its chief operating officer. Mr. McGinnes testified that in 1985 he had been called by Claude or Johnny Moore and asked if they could become Luxor distributors in the South. An agreement was reached, and it was decided that because the Moores’ company was new, there would be a security agreement and personal guarantees executed by them. The agreements were sent by McGinnes to the Moores, signed in Arkansas, and returned to Washington, whereupon Luxor began shipping equipment to Moore Distributing, Inc. Mr. McGinnes presented testimony about the invoices showing the indebtedness to his company. On cross examination, he was asked if Luxor had done business with a company named “Digital Satellite” in Arkansas. He replied he was not sure, but was aware that Claude Moore had been associated with that company.

At the close of Mr. McGinnes’s testimony, Johnny Moore moved for a directed verdict on the ground that the Wingo Act had been raised as a defense and Luxor had not borne its burden of proof by showing that it was entitled to enforce its contracts in the courts of Arkansas. Luxor’s contention in response was that the penalty provision had been raised as an affirmative defense, and the burden of proving that the foreign corporation may not enforce its contracts in Arkansas lies with the party asserting it. At the conclusion of the discussion, the court ruled as follows: “The proof has been, number one, that the plaintiff was contacted by telephone by these defendants and they asked to be permitted to sell the product. I don’t really think it is all that close. I’ll deny the motion. If I am wrong, you’ve got it on the record.”

After his motion for directed verdict was denied, Johnny Moore testified, as noted above, about his conversations with persons in the Luxor office. He also testified that at the time he parted from his business venture with Claude Moore, and notified Luxor of that fact, there was $39,000 worth of Luxor equipment on hand at Moore Distributing, Inc., and about $15,000 worth which had been shipped to them C.O.D. and was in the hands of United Parcel Service awaiting payment.

Among other instructions, the court told the jury: “If you find that Luxor unjustifiably impaired the collateral then Johnny Moore is absolved of liability only to the extent the collateral has been impaired. Johnny Moore has the burden of proving the unjustified impairment and the extent thereof.” The instruction was specifically objected to by Luxor on the grounds that (1) for there to be impairment of the collateral, the collateral must be in the hands of the creditor, and (2) under the terms of the guarantee agreement Johnny Moore had specifically waived the right to participate in the collateral or have Luxor go against it as a precondition of recovery under the agreement.

The jury returned a verdict against Claude Moore in the amount of $82,223.98 and against Johnny Moore in the amount of $28,000.00. Judgment was entered for joint and several recovery by Luxor against Claude Moore and Johnny Moore for $28,000.00 and against Claude Moore for $82,223.98. Luxor then moved for judgment notwithstanding the verdict, contending that there was no basis for the jury’s having entered its verdict against Johnny Moore for less than the full amount of the claim. In his order granting the motion, the judge noted that a secured creditor has no duty to accept collateral in reduction of the debt or to seek to repossess the collateral. Judgment notwithstanding the verdict was entered in favor of Luxor against Johnny Moore for $82,223.98.

The Wingo Act

Section 64-1202 provides, in pertinent part, that “[a]ny foreign corporation which shall fail or refuse to file its articles of incorporation or certificate . . . cannot make any contract in the State which can be enforced by it either in law or in equity. . . .” Johnny Moore argues that by raising the statutory provision as a defense he placed the burden on Luxor to prove that it had filed its credentials with the secretary of state or that for some reason the provision was inapplicable. That argument is correct, as we have held that raising the act as a defense does place the burden on the corporation to show that it should not be precluded from enforcing its contract in an Arkansas court. Mielmier v. Toledo Scale Co., 128 Ark. 211, 193 S.W. 497 (1917). See also Widmer v. J.I. Case, 243 Ark. 149, 386 S.W.2d 702 (1967). However, we agree with the trial court that the evidence would not support application of the statute so as to preclude Luxor from bringing this action. In the words of the statute, to be precluded from enforcement, the contract must be one made “in this State” by a noncomplying corporation. Brown Broadcast, Inc. v. Pepper Sound Studio, Inc., 242 Ark. 701, 416 S.W.2d 284 (1967). The place where the last act necessary to the completion of the contract occurs is the place where the contract is made. Hough v. Continental Leasing Corporation, 275 Ark. 340, 630 S.W.2d 19 (1982). Although the security agreement and the guarantee agreements were sent by the Washington company to Arkansas to be signed by Claude and Johnny Moore, the final act of acceptance occurred in Washington when credit was extended on the basis of those agreements. See Moody v. Kirkpatrick, 234 F. Supp. 537 (1964). We hold that the contracts were not made in this state.

We recognize that this issue is presented in a peculiar procedural posture. The trial judge, by the manner in which he ruled that Johnny Moore was not entitled to a directed verdict, seemed to preclude any further consideration of the Wingo Act penalty despite the fact that it was the burden of Luxor to show that it did not apply. No instruction was presented on the matter, and thus the jury was not allowed to consider it. It was as if Luxor had asked for and been granted a directed verdict on that issue. We find no reversible error here because, given the evidence before the court, it could well have granted Luxor such a directed verdict, and no instruction was sought by Johnny Moore on the Wingo Act issue.

Impairment of Collateral

In reviewing Luxor’s motion for judgment notwithstanding the verdict, the trial court apparently realized his mistake in instructing on impairment of collateral and granted the motion raising the damages against Johnny Moore from $28,000.00 to the full amount sought. No argument has been made on appeal that it was error to grant a judgment notwithstanding the verdict to the party bearing the burden of proof. Rather, Johnny Moore’s argument is that Luxor had a duty, which it violated, not to impair the collateral securing the obligation to it of Moore Distributing, Inc. We hold that the trial court ultimately reached the correct conclusion, i.e., that Luxor had no duty to repossess its collateral to protect its guarantor.

Unfortunately, Johnny Moore relies for his authority, on the subject of impairment of collateral, upon our original opinion in a case in which we granted rehearing reaching the opposite result. Myers v. First State Bank of Sherwood, 293 Ark. 82, 732 S.W.2d 459 (1987), rehearing granted, 293 Ark. 87-A, 741 S.W.2d 624 (1987). In that case we held on rehearing that the bank should not have released its principal obligors from liability thus impairing a guarantor’s right of recourse. That holding is not applicable here because we are dealing with impairment of collateral rather than impairment of the guarantor’s right of recourse against a third party. Discharge of a surety for impairment of the right of recourse occurs pursuant to Ark. Stat. Ann. § 85-3-606(l)(a) (Add. 1961). Discharge of a surety due to impairment of collateral is an entirely different matter covered by Ark. Stat. Ann. § 85-3-606(l)(b) (Add. 1961). The issue here is whether a creditor who is not in possession of the collateral has a duty to repossess it in the event a surety feels insecure and notifies the creditor of the problem.

We have held that a holder of a promissory note has no duty to accept an offer of the collateral pledged by the maker of the note in lieu of payment. Storthz v. Commercial National Bank, 276 Ark. 10, 631 S.W.2d 613 (1982). Nor do we believe a creditor should have an obligation to repossess or seize collateral in the circumstances presented here. Luxor has cited a case very similar to the one before us in which it was held that there was no such obligation to protect a surety or guarantor. Commercial Credit Equipment Corporation v. Hatton, 429 F. Supp. 997 (N.D. Tex. 1977). In that case we find this persuasive language:

If a creditor were under a duty to repossess, for example, the note holder in an automobile financing transaction might be required to investigate every allegation by a surety that the debtor in possession of the collateral is not having the vehicle lubricated regularly or has not added antifreeze to the radiator; failure by the creditor to investigate each such allegation and to repossess if necessary could result in discharge of the surety should it later develop that the vehicle is abandoned in worthless condition due to the failure of the debtor to have the vehicle lubricated and protected against freezing. In addition to the practical problems involved in such a system, it would not appear to be sound public policy to encourage creditors and sureties to follow debtors about to ensure that the value of collateral in their possession is not deteriorating. [429 F. Supp. at 1001]

The court noted further that a surety who feels insecure can always pay the obligation and be subrogated to the rights of the creditor and then conduct his own repossession of the collateral, running the attendant risk of wrongful repossession which would otherwise be on the original creditor.

We hold that a creditor who is not in possession of collateral has no obligation to repossess it for the protection of its guarantor and that the failure to do so is not impairment of collateral as that term is used in § 85-3-606(l)(b).

Affirmed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I concur. Frankly, I must admit that I am unsure of what this court’s case law now holds as it pertains to the enforceability of personal guarantees. In our recent case of Myers v. First State Bank of Sherwood, 293 Ark. 82, 732 S.W.2d 459 (1987), we held that the Uniform Commercial Code, in particular Ark. Stat. Ann. § 85-3-606(1) (Add. 1961), does not apply to the situation where a person signed a separate guaranty agreement. We then, citing First National Bank v. Waddell, 74 Ark. 241, 85 S.W. 417 (1905), referred to Arkansas’s general suretyship law, stating that a creditor has an obligation to preserve a surety’s right of recourse in the collateral. In doing so, we upheld the trial court’s decision that Myers caused the wrongful disposal of the collateral which secured the loan he previously guaranteed and, therefore, should not benefit under the state’s general surety law. Upon granting a rehearing and reversing ourselves in the Myers case, this court merely stated that we placed too much emphasis on Myers’s activity as surety rather than on what First State Bank of Sherwood as creditor did with respect to the collateral. Myers v. First State Bank of Sherwood, 293 Ark. 87-A, 741 S.W.2d 624 (1987). In its rehearing opinion, the court never retreated from its position that the Uniform Commercial Code was inapplicable, and, in fact, decided in Myers’s favor, again referring only to the general surety law as set out in First National Bank v. Waddell, 74 Ark. 241, 85 S.W. 417.

In today’s decision, the majority applies the Uniform Commercial Code, particularly Ark. Stat. Ann. § 85-3-606(1 )(b) (Add. 1961), to a situation, like in Myers, where a separate personal guaranty was executed. In applying the Code provisions, the court in no way explains why the general surety law does not apply, but, instead, it simply states § 85-3-606(l)(b) of the Code applies because the facts here deal with an impairment of collateral issue — not one involving an impairment of a guarantor’s right of recourse, as was the case in Myers. The Myers holding cannot be so easily distinguished or explained. In my opinion, the court’s original decision in Myers was correct, and our subsequent decision to reverse the initial holding was clearly wrong. Nonetheless, because I believe the general surety law and the evidence supports the trial judge’s decision in this cause, I join the majority in its affirmance.


author: Per Curiam.

text:
    Paul PRIDE v. STATE of Arkansas
    742 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      Robert F. Morehead, for appellant.
    No objection.
   Per Curiam.

Appellant, Paul Pride, by his attorney, has filed for a rule on the clerk. His attorney, Robert J. Morehead, 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.


text:
    Lynn D. SUTTON, Luther Sutton, and Rose Agnes Sutton, His Wife v. CENTRAL PRODUCTION CREDIT ASSOCIATION
    745 S.W.2d 588
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      John Robert Graves, for petitioners.
    No response.
   Per Curiam.

The court reporter in this case is Carl L. Arrington. The clerk refused to docket the transcript the petitioner tendered because it did not comply with the uniform standards set forth in our per curiam dated July 7, 1986.

The clerk was right in refusing the transcript. Mr. Arrington has been warned before, by letter from our clerk dated March 2, 1987, that his transcripts were not in compliance.

The petitioner’s remedy is threefold. First, a complaint can be made to the judge that his court reporter is not preparing proper transcripts. A suggestion from him would probably prompt his court reporter to prepare a proper transcript. Second, a civil suit may be filed against the court reporter for damages for breach of contract and loss of the right to appeal. An alternative claim of negligence could be made. Third, a complaint may be filed with the Supreme Court Committee on Court Reporters. The Chairman is Circuit Judge Charles Eddy of Morrilton. The petitioner may seek all three remedies simultaneously, if he wishes.

Motion denied without prejudice.


author: Jack Holt, Jr., Chief Justice.

text:
    Brian McWILLIAMS v. Aaron ZEDLITZ
    87-189
    742 S.W.2d 929
    Supreme Court of Arkansas
    Opinion delivered January 25, 1988

      Gean, Gean, & Gean, by; Lawrence W. Fitting, for appellant.

      Jerry Ryan, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal is from a jury verdict in favor of the appellees, Aaron and Opal Zedlitz, on their complaint against the appellant, Brian McWilliams, for willful and malicious misrepresentation (the tort of deceit) as to the need of a survey for the purchase of real property. It is claimed on appeal that the trial court erred in denying appellant’s motion for a directed verdict. In the alternative, it is argued that the verdict was against the preponderance of the evidence. Because there is substantial evidence to support the verdict, we affirm.

Sometime in October 1983, Aaron and Opal Zedlitz, residents of Texas, engaged the services of McWilliams Real Estate in Mena, Arkansas, to assist the couple in finding and purchasing land near Mena. Brian McWilliams took Mr. and Mrs. Zedlitz to a piece of property which the couple ultimately purchased. According to Aaron Zedlitz, McWilliams had represented that the exact acreage was not known, and a survey would have to be done before the property could be sold. McWilliams, also a surveyor, maintained that it was he who would do the survey. Aaron Zedlitz further testified that McWilliams had assured them that the county records had been checked, and no prior survey had been performed. Opal Zedlitz corroborated her husband’s testimony. She added that they told McWilliams that they would not pay for a survey if one had already been performed.

The Zedlitzes signed a real estate agreement on the day the property was first shown and deposited earnest money with McWilliams. Closing was set for November 15, 1983, but the couple did not return to Arkansas until November 17, at which time they again viewed the property and discovered that someone had recently surveyed the land and placed new markers. McWilliams informed them that the required survey was completed at a cost of $629.50, which they paid. An escrow agreement furnished by McWilliams and dated November 18, 1983, included a property description which ends:

The above described acreage being surveyed by Brian M. McWilliams with a plat of said survey filed in the Circuit Clerk’s Office, Polk County, Arkansas ....

In May 1984, Aaron Zedlitz contacted the county clerk in an attempt to secure a copy of the plat filed by McWilliams, only to discover that no such plat had been filed. In the process, he found the plat of a prior survey performed in 1980 by the county surveyor. A copy of the McWilliams survey, which was performed in November 1983, was filed with the clerk on September 7, 1984. Notations on the McWilliams survey indicate that McWilliams knew of and made use of the preexisting survey, although he had informed the Zedlitzes the property had not been previously surveyed.

In contradiction, McWilliams testified that when Aaron Zedlitz first expressed concern in October 1983 about the location of the property lines, he offered to check the county records to see if the property had been surveyed. Shortly after showing the property, he checked the records and informed the couple that a survey was of record. McWilliams stated that he subsequently performed survey work on the property in November 1983, however, he maintained it was not a complete survey and was done only after Aaron Zedlitz requested that the property corners be verified and marked. McWilliams further advised the Zedlitzes that the only way to determine whether a particular logging road was on the property was to have a survey performed.

The jury found for the Zedlitzes and awarded compensatory and punitive damages.

To succeed on a claim for willful and malicious misrepresentation, it was necessary that the appellees prove: (1) a false, material misrepresentation of fact by McWilliams; (2) knowledge by McWilliams that the representation was false; (3) an intention by McWilliams that the appellees act in reliance upon the representation; (4) justifiable reliance by the appellees on the representation; and (5) damage to the appellees resulting from such reliance. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987); Storthz v. Commercial National Bank, 276 Ark. 10, 631 S.W.2d 613 (1982).

In cases in which it is contended that the evidence was insufficient to support the plaintiffs claim, and in which this court is also being asked to review the denial of a motion for a directed verdict, the evidence, along with all reasonable inferences deducible therefrom, is examined in the light most favorable to the party against whom the motion is sought. First Commercial Bank v. Kremer, 292 Ark. 82, 728 S.W.2d 172 (1987). If there is any substantial evidence to support the verdict, we will affirm the trial court. Grendell, supra.

Although the testimony was in sharp conflict, it is within the province of the jury to resolve those conflicts. Union Lincoln Mercury, Inc. v. Daniel, 287 Ark. 205, 697 S.W.2d 888 (1985). There was substantial evidence for the jury to find that McWilliams falsely represented to the Zedlitzes that as the property had not been previously surveyed, a survey would be necessary in order for them to acquire the land, and that the Zedlitzes relied on these representations and paid McWilliams for a survey when one already existed. McWilliams represented in an escrow agreement that his own survey had been completed and the corresponding plat filed with the county, when in fact it was not of record. McWilliams was aware of the previous survey as evidenced by notations on his own plat. The jury resolved the evidence in favor of the Zedlitzes, which was within its province. Union Lincoln Mercury, Inc., supra.

Affirmed.


text:
    James Hamilton PARKMAN v. STATE of Arkansas
    CR 87-137
    742 S.W.2d 927
    Supreme Court of Arkansas
    Opinion delivered January 25, 1988

      William L. Wharton, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

James Hamilton Parkman was convicted of battery in the first degree [Ark. Code Ann. § 5-13-201 (1987)] and sentenced to forty years imprisonment as an habitual offender. He argues on appeal that there was insufficient evidence to support the jury verdict and that the trial court erred in admitting privileged communications into evidence. We find no error and affirm the judgment of the trial court.

Parkman, an ex-convict, first contends that there was insufficient evidence to support the jury verdict since the principal testimony at trial was that of two ex-convicts, Mike Walker and Robert Nease. Walker testified that while Parkman was standing outside of a vehicle in which Walker and Nease, the driver, were sitting, Parkman pulled a gun from behind his back, pointed it at Walker’s head, and fired it just as Walker was putting his right hand up to cover his face. The bullet struck and passed through his hand. At trial, Nease identified Parkman as the person who was standing outside of the vehicle. He also testified that when he started to drive away, he heard a gun shot and then Walker remark, “I’ve been shot. I’m bleeding like a stuck pig.” In a tape recording admitted into evidence, Parkman stated to Mike Willingham, a private investigator, that he had hit Walker with a “38.”

We affirm if there is any substantial evidence to support the jury verdict. Robinson v. State, 293 Ark. 243, 737 S.W.2d 153 (1987). Substantial evidence is evidence of such sufficient force and character that it will compel a conclusion one way or the other. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987). Although the key testimony at trial was given by two ex-convicts, it was for the jury to determine the credibility of these witnesses. Robinson v. State, 291 Ark. 212, 723 S.W.2d 818 (1987). We find the evidence introduced at trial was sufficient to support the guilty verdict on the charge of battery in the first degree.

Parkman also argues that a taped conversation should have been excluded under the attorney-client privilege. Mike Willing-ham, a private investigator who had been employed by Parkman’s step-mother to assist in investigation and trial preparation for a murder case against Parkman, recorded a conversation between himself and Parkman in which Parkman stated he had hit Walker with a “38.” The evidence reveals that Parkman’s lawyers did not employ Willingham, but they met with him and used his work product in defending Parkman in the murder case, which resulted in acquittal. In denying Parkman’s motion to suppress, the trial court found the attorney-client privilege did not apply because Willingham was not a representative of Parkman’s lawyers and because the communications involved matters other than the rendition of legal services. We agree.

Ark. R. Evid. 502(b) provides:
General Rule of Privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communcations [communications] made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer’s representative, (2) between his lawyer and the lawyer’s representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

Ark. R. Evid. 502(a)(4) defines “representative of the lawyer” as “one employed by the lawyer to assist the lawyer in the rendition of professional legal services.”

The communications between Parkman and Willing-ham were not protected by the attorney-client privilege. Willing-ham was not a representative of Parkman’s lawyers under Ark. R. Evid. 502(a)(4) since they did not employ him to assist in the rendition of professional legal services. In addition, the communications were not made for the purpose of facilitating the rendition of professional legal services, which is a prerequisite under Ark. R. Evid. 502(b) to invoking the attorney-client privilege. The telephone conversation between Parkman and Willingham concerned the acquisition and sale of illegal weapons and drugs and the fact that Parkman had shot Walker in the hand. Accordingly, the trial court did not err in admitting a portion of the taped conversation into evidence.

Affirmed.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    Henry Leroy TIPPITT v. STATE of Arkansas
    CR 87-152
    742 S.W.2d 931
    Supreme Court of Arkansas
    Opinion delivered January 25, 1988

      Wm. B. Brady, for appellant.

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

The appellant, Henry Leroy Tippitt, was convicted of aggravated robbery and sentenced as a habitual offender to 40 years imprisonment. Tippitt raises four meritless points for reversal.

The conviction arose from the robbery of Monty Cazer, who was hitchhiking on the interstate in Little Rock. Cazer’s car had run out of gas. Tippitt stopped and offered Cazer a lift; Cazer testified that Tippitt asked him for some money, stating that he “didn’t give free rides.” Three other men were also in the vehicle. The evidence most favorable to the state was that Tippitt pulled a knife on Cazer, beat him and robbed him of $95 and a wrist watch.

First, Tippitt argues that the search of the vehicle, made shortly after the robbery, was unconstitutional. After he was robbed, Cazer hailed a policeman, and while he and the officer were enroute to Cazer’s vehicle, Cazer spotted the vehicle Tippitt had driven during the robbery. The police officer stopped that vehicle. Two of the men who were present during the robbery were still in the vehicle. Tippitt was not. The vehicle was owned by Pam Sublett, not Tippitt. Because Tippitt had no standing to question the search, we find no merit in the argument. Rakas v. Illinois, 439 U.S. 128 (1978).

The second argument is the trial judge erred in refusing to allow as evidence the written statement of Mark Allen Murphey, one of the four men in the car. Although the state issued a subpoena for Murphey, it was not served. Murphey was charged with robbery at the time he gave the statement, but the charges were later dropped. In his statement to the police, Murphey said that he did not see Tippitt with a knife. The judge found that Murphey was unavailable, but his statement was not trustworthy.

Under Unif. R. Evid. 804(5), such a statement must have “circumstantial guarantees of trustworthiness equivalent to those supporting the common-law exceptions.” Hill v. Brown, 283 Ark. 185, 672 S.W.2d 330 (1984). The statement made when Murphey was facing criminal charges could have been self-serving. We cannot say that the trial judge abused his discretion in refusing the admission of the statement. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987).

Tippitt also argues that his sentence was illegal because he was sentenced under Ark. Stat. Ann. § 41-1001 (2) (a) (Supp. 1985) [Ark. Code Ann. § 5-12-103 (1987)], the habitual offender statute. Tippitt contends that the aggravated robbery statute has its own enhancement provisions and that he should not have been sentenced pursuant to Ark. Stat. Ann. § 41-1001 but under § 41-2102(3). In Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987), we held aggravated robbery is simply a Class Y felony and subsection 3 was repealed by § 13 of Act 620 of 1981. The judge instructed the jury it could sentence the appellant to a term of not less than forty years nor more than life pursuant to Ark. Stat. Ann. § 41-1001 (2) (a), which was proper, and Tippitt’s sentence was not illegal.

Finally, Tippitt argues that although he had counsel for each of his four prior convictions, he was not advised of the “enormity of further consequences if he again faced trial.” In other words, counsel did not tell him if he kept breaking the law he would receive stiffer sentences. The law places no such burden on counsel. See Brown v. State, 291 Ark. 393, 725 S.W.2d 544 (1987).

Affirmed.