author: Richard B. Adkisson, Chief Justice. Steele Hays, Justice,

text:
    Venell SMITH, et al v. E. E. BULLARD, et al
    79-317
    610 S.W. 2d 888
    Supreme Court of Arkansas
    Opinion delivered February 2, 1981

      East Arkansas Legal Services, by: Christopher William Venters, for appellants.

      Richard L. Proctor, for appellees.
   Richard B. Adkisson, Chief Justice.

This is apparently an appeal from a Cross County Chancery Court order dated July 11, 1979, denying appellant’s petition to proceed in forma pauperis.

The questions argued on appeal concern the chancellor’s ruling of July 5, 1979, holding that appellant could not proceed as an indigent pursuant to Rule 18 of the Uniform Rules for Circuit and Chancery Courts (Ark. Stat. Ann., Vol. 3A, Repl. 1979, p. 519) without first meeting the requirements of Ark. Stat. Ann. § 27-402 (Repl. 1979).

Since appellant’s abstract and briefs are not in compliance with Rule 9(b), (c), or (d), we must affirm the trial court under Rule 9(e)(2) of the Rules of the Supreme Court of Arkansas (Ark. Stat. Ann., Vol. 3A, Repl. 1979, p. 485). Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W. 2d 707 (1978).

Appellant’s abstract did not contain a concise statement of the case without argument as required by Rule 9(b).

Rule 9(c) provides, in part: “Following his statement of the case the appellant shall list and separately number, concisely and without argument, the points relied upon for a reversal of the judgment or decree.” Generally, a point for reversal should be limited to a one-sentence statement of the error committed by the trial court. Appellant’s “Points and Authorities” covers one full page without setting forth what the trial court did wrong.

Also, Rule 9(c) provides: “Either party may insert under any point not more than two citations which he considers to be his principal authorities on that point.” However, appellant’s “Points and Authorities,” which he divides into three sections, contains a total of at least 17 citations of authority.

Rule 9(d) requires:

The appellant’s abstract or abridgement of record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision. .. . Not more than two pages of the record shall in any instance be abstracted without a page reference to the record.

Appellant’s abstract is not in compliance with the above provisions of Rule 9(d) in the following particulars:

First, appellant’s abstract begins with a narrative explanation, unsubstantiated by the record, of the events leading up to the chancellor’s letter of June 26, 1979, ordering the chancery clerk to assign a number to the appellant’s complaint.
Second, appellant has not abstracted the affidavit of indigency relied upon in the trial court to support his in forma pauperis petition. The affidavit supporting his assertion of indigency is required to be filed by Rule 18 of the Uniform Rules of Circuit and Chancery Courts. Ark. Stat. Ann., Vol. 3A, (Repl. 1979).
Third, appellant has failed to abstract the order of July 11, 1979, from which he has appealed.
Fourth, appellant’s four-page abstract makes no page reference to the record.

In numerous cases this court found it necessary to affirm for noncompliance with Rule 9. Dyke Industries, Inc. v. Johnson Construction Co., 261 Ark. 790, 551 S.W. 2d 217 (1977); Smith v. Smith, 263 Ark. 578, 567 S.W. 2d 88 (1978); Wade v. Franklin-Stricklin Land Surveyors, Inc., 264 Ark. 841, 575 S.W. 2d 672 (1979); Perry v. Cox, 266 Ark. 402, 585 S.W. 2d 33 (1979).

Affirmed.

Purtle and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. I would relax Rule 9 in this instance: this is an indigent; this court has few opportunities to express policy under Rule 18 of the Uniform Rules for Circuit and Chancery Courts; and the rule needs clarification.

Appellant’s affidavit of indigency stated she was unemployed, widowed and the head of a household consisting of nine children and three grandchildren. She can neither read nor write and this affects more than literacy. alone. In the hearing she was unable to give the ages of her children. Her knowledge of her income was confused. She receives $296 per month from Social Security, $110 per month as Aid For Dependent Children and food stamps of $290 per month. One child has summer work; two others have only sporadic employment.

Appellant asks to be relieved of $23.50 to the clerk and $10 to the sheriff, the costs of filing suit to protect an interest claimed on behalf of herself and children to a dwelling purchased by her late husband from which she alleges the family was wrongfully dispossessed.

The Chancellor required that notice be given to the attorney for the respondents, who stoutly resisted indigency, both here and below. The court held that Rule 18 does not supersede § 26-401 et seq., that they are to be read in conjunction with each other, and that appellant failed to prove that she was worth less than $10, as provided in § 27-402. Hence, this appeal.

Rule 18 is framed in broad terms and although it does not purport to repeal § 27-401 et seq., the only permissible inference is that it does. It has, I believe, been so interpreted in practice. These statutes date from 1838 and make two requirements: that the indigent give an affidavit that he is not worth $10 (excluding wearing apparel and the value of the cause of action) and that an attorney certify that the cause of action is good. The latter requirement is no longer observed and the $10 requirement, based on the economics of 1838 is so irrelevant to the present that any effort to adhere to § 27-402, as was done, is a clear denial of the right to proceed as an indigent.

Rule 18 provides no standard, but that may be intentional, to give the trial court latitude in determining indigency. But if the standards of 150 years ago are to be literally applied, then petitions in forma pauperis need not be filed.

When the finances of this family are examined, extreme poverty is evident: there is no automobile; rent is $40 per month for housing for 13 people; assuming the stamps provide all the food consumed by the family, a very doubtful assumption, the remaining income to be allocated to housing, heating, clothing, gas, electricity, water and medical care, all basic necessities, amounts to approximately $1 per day per person. This subsistence is far below any conceivable poverty level.

The law does not require abject destitution as a qualification for indigency. Adkins v. E. I. DuPont De Nemours & Company, 335 U.S. 331, 69 S. Ct. 85, 93 L. Ed. 43 (1948):

We cannot agree with the court below that one must be absolutely destitute to enjoy the benefit of the statute . . . To say that no persons are entitled to the statute’s benefits until they have sworn to contribute to payment of costs, the last dollar they have or can get, and thus make themselves and their dependents wholly destitute, would be to construe the statute in a way that would throw its beneficiaries into the category of public charges. The public would not be profited if relieved of paying costs of a particular litigation only to have imposed on it the expense of supporting the person thereby made an object of public support. Nor does the result seem more desirable if the effect of this statutory interpretation is to force a litigant to abandon what may be a meritorious claim in order to spare himself complete destitution.

Appellant has cited similar holdings from other jurisdictions. Ferguson v. Keys, 4 Cal. 3d 649, 94 Cal. Rptr. 398, 484 P. 2d 70 (1971); Earls v. Superior Court, 6 Cal. 3d 109, 98 Cal. Rptr. 302, 490 P. 2d 814 (1971); O’Connor v. Matzdorff, 76 Wash. 2d 589, 458 P. 2d 154 (1969); Carter v. University of Washington, 85 Wash. 2d 391, 536 P. 2d 618 (1975).

Indigency should rest within the sound discretion of the trial bench, with a benevolent view to achieve a fair and just result. To insure that, the proceeding should be confined to an ex parte hearing between the court and the purported indigent so that only the conscience versus the indulgence of the court become the criteria for judging indigency. There is no justification for indigency being treated as an adversary issue between the purported indigent and the prospective defendant, as was done here. This had traditionally been ex parte in nature and nothing in Rule 18 suggests otherwise. The defendant has no legitimate interest in this phase of the proceeding, as it affects him not at all. By participating, the defendant simply makes this proceeding his first line of defense to the litigation itself.

I believe the fact that this appeal is by an indigent, coupled with the issues presented, justify a relaxation of Rule 9 so that the special merit of this appeal might be considered. On that basis, it should be reversed with directions to the Chancellor to disregard Ark. Stat. Ann. § 27-401 et seq. and to permit appellant to proceed under Rule 18.

Justice Purtle joins in this dissent.

       The most recent decision cited by either side being Daniel v. Guy, 19 Ark. 121 (1857).


source: Caselaw Access Project

author: Richard B. Adkisson, Chief Justice.

license: Public Domain

text:
    Dennis Edward LOANE v. STATE of Arkansas
    CR 80-201
    611 S.W. 2d 190
    Supreme Court of Arkansas
    Opinion delivered February 2, 1981
    [Rehearing denied March 2, 1981.]

      E. Alvin Schay, State Appellate Public Defender, by:Jackson Jones, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Following a jury trial, appellant, Dennis Edward Loane, was convicted of aggravated robbery and sentenced to 32 years’ imprisonment under the Habitual Criminal Act, Ark. Stat. Ann. § 41-1001 (Repl. 1977).

Appellant first argues that the trial court erred in finding from the testimony at the pre-trial hearing that he had intelligently and knowingly waived his right to counsel at his post-information lineup. The “Motion to Suppress Identification Testimony” and the testimony at the pre-trial hearing in regard thereto pertained only to whether Loane had waived his right to have counsel present.

The question here considered relates to the waiver of the presence of counsel at the lineup. Appellant does not contend that the actual lineup procedures were improper or suggestive. The basic unfairness of the lineup as a denial of due process was not raised in the trial court and is, therefore, not before us.

In January, 1980, counsel was appointed to represent appellant on two separate charges of aggravated robbery then pending in Fort Smith Municipal Court. The robberies occurred at Fort Smith in 1976 at the Kentucky Fried Chicken Restaurant [hereinafter referred to as “Kentucky”] on March 13, and the Sirloin Stockade Restaurant [hereinafter referred to as “Sirloin”] in April.

Appellant, through his attorney, “requested a lineup to be viewed by the people that claimed that he was the person involved in these charges.”

His attorney was presented at the first lineup which was held on February 14, 1980, and which was viewed by two persons from “Sirloin” and three persons from “Kentucky.” One witness from “Kentucky,” Richard Maestri, identified Loane and that same morning a preliminary hearing was held. Loane was formally charged in circuit court in the “Kentucky” case on February 20, 1980.

At the preliminary hearing, Loane had a conversation with his attorney to the effect that no one had identified him in the “Sirloin” case. After consulting his attorney, Loane agreed to stand in a second lineup, for which he agreed to shave his beard and mustache.

On March 5, 1980, both Loane and his attorney were notified that the second lineup would be held at two o’clock; he consulted with his attorney and agreed to appear in the lineup, although his attorney was not expected to be present. At two o’clock he agreed to appear in the second linup after being informed that four or five witnesses would view the lineup and that his attorney was not present. Five persons viewed the March 5, 1980, lineup: Mr. Conger from “Kentucky” identified him, but none of the four persons from “Sirloin” could identify him.

The “Motion to Suppress Identification Testimony” in this case entitled appellant to a hearing at which the State bore the burden of showing that the waiver of appellant’s constitutional right to counsel was given voluntarily, knowingly, and intelligently and was based upon his receiving adequate warning as to his right to counsel. See Jackson v. State, 249 Ark. 653, 460 S.W. 2d 319 (1970).

Appellant testified and the Sate candidly admitted that Loane was mistaken “as to what he perceived was the purpose of the lineup.” And, appellant does not claim that the State, in any way, tricked or intentionally misled him with respect to his appearing in the second lineup.

Appellant correctly contends that he had the right to the presence of counsel at a post-information lineup absent a knowing and intelligent waiver of that right. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). And, Johnson v. Zerbst, 304 U.S. 458, 464 (1930), states:

A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

Using this definition, we consider the following factors in evaluating the background, experience, and conduct of the accused for purposes of determining whether an intelligent waiver was made:

1. Loane is on record as having continuously requested a lineup on both charges.

2. He knew all witnesses did not view the first lineup.

3. He agreed to shave his beard and mustache for the second lineup.

4. He discussed with his attorney the need for the attorney’s presence at the second lineup.

5. He was admittedly informed of his counsel’s absence by Detective Hammond prior to the lineup and was asked if he chose to proceed.

The cumulative effect of these factors is that the appellant did, in fact, waive his right to counsel at the second lineup. Therefore, the trial court’s finding that appellant had voluntarily, knowingly, and intelligently waived his right to counsel during the lineup confrontation is supported by substantial evidence. Jackson v. State, 249 Ark. 653, 460 S.W. 2d 319 (1970). We will not set aside the ruling unless it is clearly erroneous. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).

In his second point for reversal, appellant argues that the trial court erred in refusing to allow him to introduce evidence that his fingerprints were not found at the place where the alleged robbery occurred unless the prosecution was allowed to introduce its evidence that the fingerprints of one Richard Lee was found.

Appellant first sought to introduce evidence that Loane’s fingerprints were not found at the crime scene: “Well, what I intended to offer is hearsay evidence. It is hearsay to the fact that Loane’s fingerprints were not found. I agree to that.” The prosecution sought to introduce hearsay evidence that the fingerprints of the alleged accomplice, Richard Lee, were, in fact, found at the crime scene. The court ruled it would allow the fingerprint evidence offered by either side or prohibit it altogether. All the fingerprint evidence sought to be introduced was acknowledged to be hearsay by both the prosecutor and defense, the FBI expert not being available to testify. Appellant waived any objection as to hearsay but reserved his objection based on the relevancy of Lee’s fingerprints being found on a paper cup at “Kentucky.” This contention is without merit, and we uphold the trial court’s ruling.

Rule 401, Uniform Rules of Evidence, Ark. Star. Ann. § 28-1001 (Repl. 1979), states that relevant evidence is that evidence which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Also, “evidence is relevant and admissible if it tends to prove an issue, or constitutes a link in the chain of proof, even if other evidence is required to supplement it.” Martin v. State, 258 Ark. 529, 531, 527 S.W. 2d 903 (1975).

Appellant testified on direct examination that he became acquainted with Lee when the two of them served time in an Oklahoma penitentiary and that Lee was serving time on a robbery charge. Appellant further testified that following his release from an Oklahoma penitentiary in 1975, the two frequently saw each other through the middle of 1976. On cross-examination appellant described Lee as being shorter than himself and having much darker hair than his; and, he stated that Lee was of a medium build and had what could be a scar on the right side of his face.

This description coincides with the one given by the eyewitnesses. Lee was described as being 5 feet 9 inches tall, weighing 145-150 pounds, having black hair, and having a scar under one eye. Also, he was described as being shorter and stockier than appellant.

Appellant was identified as being at the restaurant and participating in the robbery of “Kentucky” by two witnesses. Lee’s fingerprints were found at “Kentucky” immediately after the robbery. These two facts viewed in the light of appellant’s testimony that he had never come to Fort Smith with Lee may very well have raised serious doubts as to the credibility of the appellant in the minds of the jury.

The fact of Lee’s fingerprints being found at the scene of the robbery is clearly relevant when viewed in the light of the other testimony in the case.

Affirmed.

Purtle, J., dissents.


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

text:
    Clemmie Genero CASON v. STATE of Arkansas
    CR 80-172
    610 S.W. 2d 891
    Supreme Court of Arkansas
    Opinion delivered February 2, 1981

      E. Alvin Schay, State Appellate Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M.Jochums, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In 1978 Cason was convicted at a non-jury trial of delivery of heroin and was sentenced to ten years’ imprisonment. In 1979 we affirmed the conviction as a no-merit appeal. Some two months later we gave Cason permission to seek postconviction relief in the trial court under Rule 37, for ineffective assistance of counsel. This appeal is from the trial court’s denial of relief after an evidentiary hearing at which Cason and his former attorney, Louis W. Rosteck, testified.

In 1976 three informations were pending against Cason, two arising under the Controlled Substances Act and the third charging theft by receiving. Cason retained Rosteck as paid counsel to represent him in the first drug case. Cason then jumped bail and was away from Arkansas for more than a year. After Cason was again taken into custody the first case was tried. Rosteck succeeded in having it dismissed on the ground that the officers had obtained the drugs by an illegal search.

At the conclusion of that case the trial judge appointed Rosteck as counsel for Cason in the other two cases. After the conviction in the second case, which is the one now before us, Cason pleaded guilty to the charge of theft by receiving. Any effort to obtain postconviction relief in that case under Rule 26 has evidently been abandoned.

Cason, in his petition in this court for permission to seek relief under Rule 37, made various conclusory allegations of negligence, ineffectiveness, and incompetency on Rosteck’s part. The petition asserted that Rosteck failed to make adequate pretrial investigation. The only really specific allegation of fact was that Rosteck failed to locate, interview, and subpoena five witnesses who were available and would have testified that Cason was with them on' the night of the offense and could not have been at the scene of the crime.

The controlling principles of law are clear. We have explained that our “mockery of justice” standard for the determination of ineffectiveness of counsel is not to be taken literally, but it does embody the principle that the petitioner must shoulder a heavy burden in proving unfairness. McDonald v. State, 257 Ark. 879, 520 S.W. 2d 292 (1975). Hence Cason had the burden of showing clearly and convincingly that Rosteck’s representation, at least as it manifested itself in the courtroom, was so patently lacking in competence that it became the duty of the trial judge to be aware of it and to correct it.

Cason testified below. He wholly failed to substantiate his assertion that there were five known available witnesses who would have supported what was apparently his main defense, that of alibi. In his testimony, Cason did not even refer to those supposed witnesses, much less give their names, identify them in any way, or explain how they could have remembered more than two years later that Cason was at a party on a certain night at a certain place. The trial judge would have been justified in finding that the allegations in Cason’s petition with reference to those witnesses were simply false.

As to the pretrial investigation, Rosteck testified that he examined the prosecutor’s file and talked to Officer Littles, who confirmed the facts stated in the file. Rosteck explained why he did not call either of the two possible witnesses, Johnson and Walls, who were somewhat vaguely referred to in Cason’s testimony below. Rosteck said that Cason, against Rosteck’s advice, testified at the trial and “grandstanded” by claiming that the officers were framing him and that the prosecution was a farce. Rosteck, a lawyer with 25 years’ experience in criminal cases, ended his testimony by saying that if he had it all to do over again he knew of nothing that he would do differently.

Cason’s argument in this court falls decidedly short of showing that the trial judge’s denial of postconviction reliefs is clearly erroneous. Cason’s assertions are largely negative, such as a charge that Rosteck failed to learn the identity of the prosecution’s confidential informer. It is not shown, however, that the informer could have supplied relevant admissible testimoy. See Ark. Stat. Ann. § 28-1001, Uniform Evidence Rule 509 (Repl. 1979)- So with the other general allegations. It would be futile for the trial court or for this court to order a new trial without any showing whatever that facts favorable to the petitioner should have been developed by further investigation or could now be developed.

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the results reached, however, on slightly different grounds. My primary objection to the standard of review in cases alleging ineffective assistance of counsel was the use of the phrase “farce and mockery” as a standard of review. This term originated in the Court of Appeals for the District of Columbia. Diggs v. Welch, 148 F. 2d 667 (D.C. Cir. 1945). However, the circuit subsequently abandoned the phrase and now uses the standard of “reasonably competent assistance of an attorney acting as his diligent conscientious advocate.”

The standard of review by this court in cases where there is an allegation of ineffective assistance of counsel has not been entirely clear. We cannot form a hard and fast rule to be applied in all cases regardless of the facts. However, we should depart from the standard of requiring such defense to have amounted to a “farce and mockery” before it becomes ineffective. I have not . found a case in which the United States Supreme Court has set forth a rule to be used to determine when counsel is ineffective. My search has determined that the “farce and mockery” standard has been rejected by the Courts of Appeal for the District of Columbia, United States v. Decoster, 624 F. 2d 196 (1976); First Circuit, United States v. Bosch, 584 F. 2d 1113 (1978); Third Circuit, Moore v. United States, 432 F. 2d 730 (1970); Fourth Circuit, Marzullo v. Maryland, 561 F. 2d 540 (1977), cert. denied 435 U.S. 1011 (1978); Fifth Circuit, United States v. Gray, 565 F. 2d 881 (1978), cert. denied 435 U.S. 955 (1978); Sixth Circuit, United States v. Toney, 527 F. 2d 716 (1975), cert. denied 429 U.S. 838 (1976); Seventh Circuit, United States v. Sielaff, 542 F. 2d 377 (1976), cert. denied sub. nom. Sielaff v. William, 423 U.S. 876 (1975); Eighth Circuit, Pinnell v. Cauthron, 540 F. 2d 938 (1976); Ninth Circuit, Cooper v. Fitzharris, 586 F. 2d 1325 (en banc) (1978), cert. denied 440 U.S. 974 (1979); Tenth Circuit, Dyer v. Crisp, 613 F. 2d 275 (1980), cert. denied 445 U.S. 945 (1980). Therefore, the Second Circuit is the only Circuit Court of Appeals still adhering to the “farce and mockery” standard.

The earliest case I found on the subject in Arkansas was Barnhill v. State, 247 Ark. 28, 444 S.W. 2d 97 (1969). In Barnhill, we stated:

. . . We cannot agree with appellant’s assertion that his counsel, because of inexperience or illness, conducted his defense in such a manner that his trial was a farce and a mockery of justice which denied him a fair trial. . . .

We dealt with the same subject in Franklin & Reid v. State, 251 Ark. 223, 471 S.W. 2d 760 (1971). In Franklin we stated:

Yet, when the professional conduct of non-appointed counsel is so lacking in competence or good faith that it shocks the conscience of the court or prosecutors, and the trial is reduced to a sham, farce or mockery of justice, permitting the proceedings to continue will constitute a denial of due process.

The words quoted above were from United States v. Maroney, 423 F. 2d 865 (3rd Cir. 1970). It also quoted several other federal cases.

Again, we considered this problem in Davis v. State, 253 Ark. 484, 486 S.W. 2d 904 (1972). In Davis we quoted from Poole v. United States, 438 F. 2d 325 (8th Cir. 1971), as follows:

. . . ‘only if it can be said that what was or was not done by the defendant’s attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court. Hanger v. United States, 428 F. 2d 746, 748 (8th Cir. 1970).’ .. .

The next major attempt to resolve the question of ineffective assistance of counsel seems to have been in Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973). In Leasure we stated:

... a charge of inadequate representation can prevail only if the acts or omissions of an accused’s attorney result in making the proceedings a farce and a mockery of justice, shocking the conscience of the court, or the representation is so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of and correct it.

Again, we cited a federal case in support of this holding. Slawek v. United States, 413 F. 2d 957 (8th Cir. 1969). Other circuit courts of appeal were also cited.

We were faced with the problem again in the case of McDonald v. State, 257 Ark. 879, 520 S.W. 2d 292 (1975). In McDonald we stated that the federal courts had not abandoned the “mockery of justice” standard. We then quoted from United States v. Hager, 505 F. 2d 737 (1974), which in turn had quoted from McQueen v. Swenson, 498 F. 2d 207 (1974).

Stringent as the “mockery of justice” standard may seem, we have never intended it to be used as a shibboleth to avoid a searching evaluation of possible constitutional violations; nor has it been so used in this circuit. It was not intended that the “mockery of justice” standard be taken literally, but rather that it be employed as an embodiment of the principle that a petitioner must shoulder a heavy burden in proving unfairness.

Therefore, McDonald followed the prior cases in quoting verbatim from the Eighth Circuit Court of Appeals.

The next significant case I reviewed in Arkansas was Kozal v. State, 264 Ark. 587, 573 S.W. 2d 323 (1978). In Kozal we stated:

The evidence falls short in warranting a holding that appellant’s initial counsel’s services reduced the proceeding to a farce, a mockery of justice and shocking to the Court. It must be remembered that effective assistance of counsel does not equate with success. The mere showing of improvident strategy, or bad tactics is not sufficient to establish that defendant was denied effective assistance of counsel. . .

Although the case cited Franklin & Reid v. State, supra, it also cited Pinnell v. Cauthron, 540 F. 2d 938 (8th Cir. 1976).

Two more recent cases have dealt with the subject, the first being Jones v. State, 267 Ark. 79, 589 S.W. 2d 16 (1979), wherein we stated:

The advice given by retained counsel obviously is within the range of competence demanded of attorneys in criminal cases.

Another case still in the advance sheets is Hoover v. State, 270 Ark. 978, 606 S.W. 2d 744 (1980), wherein we stated:

The United States Court of Appeals, Eighth Circuit, puts the test for competency in this way: “[T]rial counsel fails to render effective assistance when he does not exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.” Pinnell v. Cauthron, 540 F. 2d 938 (8th Cir. 1976).

Therefore, it appears that almost every time we have tried to define ineffective assistance of counsel we have resorted to the definitions used by the federal courts and more particularly the Eighth Circuit Court of Appeals. So far as I am able to determine, the standard set out in Pinnell v. Cauthron, supra, is still in force and effect in the Eighth Circuit. The standard applied in the Eighth Circuit is as follows:

The standard used by this court in evaluating whether a defendant has been denied effective assistance of counsel is that trial counsel fails to render effective assistance when he does not exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.

■ In my opinion, we have not heretofore set out a standard which we believe should be followed by this court in cases where the question of ineffective assistance of counsel is at issue. We have in the past followed the federal courts and most often the Court of Appeals for the Eighth Circuit. I believe the Pinnell standard is a good one and would be willing to adopt it because it is certainly more understandable than McQueen v. Swenson, supra, which we quoted in McDonald v. State, supra.

The standard set out by the majority states the degree of proof needed to prove ineffective assistance of counsel and states the assistance must have been so patently lacking in competence that it becomes the duty of the trial judge to be aware of it and to correct it. I agree with this as far as it goes, but it fails to set out any criteria to be used in reaching the conclusion. In my opinion, we should at least require the challenger to prove the alleged ineffective counsel failed to do certain things which a reasonably competent counsel would have done or did certain things which a reasonably competent counsel would not have done under the same or similar circumstances.

Regardless of the standard adopted by this court we should also find that the ineffective assistance of counsel was prejudicial to the defendant before granting relief.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Marion Odell MORROW v. STATE of Arkansas
    CR 80-92
    610 S.W. 2d 878
    Supreme Court of Arkansas
    Opinion delivered February 2, 1981

      E. Alvin Schay, State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by:Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted of burglary (Ark. Stat. Ann. § 41-2002 [1] [Repl. 1977]), theft of property (Ark. Stat. Ann. § 41-2203 [2] [b] [Repl. 1977]) and sentenced as a habitual criminal (Ark. Stat. Ann. § 41-1001 [Repl. 1977]) to ten years and five years, respectively, the sentences to run concurrently as recommended by the jury.

Appellant first contends there was insufficient evidence of the current market value of the stolen items, which consisted of a television and a muzzle-loading rifle in a buckskin scabbard. The owner testified that that he had purchased the television set for $442.85 at Sears about two years previous to the theft. He produced the receipt. His wife testified she had paid $23 for the gun case the previous summer. There was no evidence of the value of the rifle nor the condition of any of the items at the time of the theft. Appellant overlooks the fact, however, that he testified on cross-examination that, in explanation of his possession of the items, he paid another person $ 115 for them. In the circumstances, the evidence is amply substantial that the property was in excess of the statutory requirement of $100. Tillman v. State, 271 Ark. 552, 609 S.W. 2d 340 (1980); Bailey v. State, 266 Ark. 260, 583 S.W. 2d 62 (1979); and Boone v. State, 264 Ark. 169, 568 S.W. 2d 229 (1978).

We next consider appellant’s assertion that error occurred in the admission into evidence of a sketch made of the man by a witness who observed him taking the items from the victims’ home. The sketch reflected how tall she thought the burglar was, the thickness of his hair and the lines on his shoulder garment. She thought he might have been wearing a “two-tone shirt or something.” A photograph of appellant, introduced into evidence and taken shortly after his arrest, showed appellant wearing a similar shirt. Appellant argues that the sketch was not relevant to any fact issue and, therefore, inadmissible under Ark. Stat. Ann. § 28-1001, Rules 401 and 402 (Repl. 1979).

Relevant evidence is that “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” McGuire v. State, 265 Ark. 621, 580 S.W. 2d 198 (1979); and Rule 401, supra. In our view the sketch certainly tends to make it more probable than less probable that appellant was properly identified as having committed the alleged offense.

We now consider appellant’s contention that prejudicial error was committed during the sentencing phase of the trial when appellant’s attorney and the prosecutor were permitted to stipulate to the existence of seven prior convictions without appellant being questioned as to whether he understood and agreed to the stipulation. The record shows the stipulation was made in a discussion at the bench. Although appellant’s counsel stated to the court that he had consulted with the defendant, who agreed to the stipulation, no inquiry was made of the appellant by the court as to his acquiescence or that he understood the previous convictions could be used to enhance his sentence. Appellant cites Cox v. Hutto, 589 F. 2d 394 (8th Cir. 1979) (Cox I), which holds that such a stipulation is a denial of due process of law, because it amounts to a waiver of a defendant’s constitutional right to have the state prove the prior offenses and his right to rebut that proof under Ark. Stat. Ann. § 43-2330.1 (2) (Repl. 1977) and Ark. Stat. Ann. § 41-1005 (2) (Repl. 1977); such a stipulation is the equivalent of a guilty plea and, therefore, the trial court is required to question a defendant to determine if he knowingly and voluntarily agreed to the stipulation; and it is “constitutional error” not to do so. See also Cox v. Hutto, 619 F. 2d 731 (8th Cir. 1980) (Cox II); and McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 (1975).

Thus, the question is whether or not the asserted error mandates reversal of this case; that is, whether the verdict at sentencing can be supported by valid convictions, authenticated copies of which were presented to the jury, and whether we can say appellant did not suffer prejudice. See Cox v. Hutto, supra (Cox II). Here, three of the seven convictions did not show that appellant had the benefit of counsel or made a valid waiver. Therefore, these convictions admittedly cannot be used to support the enhanced sentence. McConahay v. State, supra. This leaves four prior convictions which could support the sentences, argues the state, since the jury found two or three prior convictions. Appellant argues that it cannot affirmatively be said without speculation that the stipulation did not affect the jury’s deliberation and that the stipulation denied him the opportunity to challenge, before the jury, the use of the prior convictions, which runs afoul of Cox v. Hutto, supra (Cox II).

However, in our view, the Cox cases are not controlling in the case at bar. There, four previous convictions were stipulated and read to the jury; it found him guilty of four previous convictions which subjected him to a maximum sentence enhancement of 31 1/2 years and the jury so imposed. Here, the seven prior sentences were stipulated, introduced as evidence and given to the jury which found appellant guilty of only two or three of the seven stipulated prior felonies. It imposed only ten of a possible thirty years for burglary and five of a possible fifteen years for theft of property under our enhancement statute. The record shows appellant had an attorney in three of the seven stipulated convictions and waived assistance of counsel in another. Furthermore, appellant, during cross-examination by the prosecutor, had admitted to the jury two previous convictions and did not deny a third.

In the circumstances, we are of the view that the jury’s verdict, absent the stipulation, is supported by sufficient valid convictions, and the state adequately met its burden of showing appellant suffered no prejudice as a result of this stipulation.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I respectfully dissent from the majority opinion in holding that the stipulation of seven convictions was properly presented to the jury. We do not allow a stipulation by an accused that he is guilty. We require proof to the court that the person is guilty and that he fully understands the rights he is giving up in pleading guilty. As was held in Cox v. Hutto, 589 F. 2d 394 (8th Cir. 1979), the stipulation of prior convictions was the functional equivalent of a guilty plea. Therefore, it reasons that we cannot accept such stipulation without further proof and without the knowledgeable consent of the appellant.

It is obvious that the jury was concerned about the stipulation of the seven felonies by inquiring of the court whether such stipulation automatically set the number of convictions at four or more. I think the jury was entitled to know more about these convictions; of course at least three of them could not have been presented to the jury had there been required of the state the proper degree of proof. The number of prior convictions is a factual determination to be made by the jury. Although we have previously reduced the sentence to the minimum allowed for the conviction, such would be improper in this case. Klimas v. State, 271 Ark. 508, 609 S.W. 2d 46 (1980). The state has the same burden of proof in the matter of prior convictions as it does on the case in chief. McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 (1974); and Leggins v. State, 267 Ark. 293, 590 S.W. 2d 22 (1978).

There is no way that I know of by which it can be determined how much reliance the jury placed on the stipulation in reaching the sentences imposed. Obviously they gave more than the minimum and they did find the appellant had committed two or more previous offenses. Although I seriously doubt the appellant will fare as well on a retrial, I am of the opinion he has the right to a retrial because the stipulation on the seven prior convictions are prejudicial.


author: Frank Holt, Justice.

text:
    Ronnie BREWER v. STATE of Arkansas
    CR 80-130
    611 S.W. 2d 179
    Supreme Court of Arkansas
    Opinion delivered February 2, 1981
    [Rehearing denied March 2, 1981.]

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M.Jochums, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant and two others were jointly charged with capital murder, Ark. Stat. Ann. § 41-1501 (Repl. 1977), and aggravated robbery, Ark. Stat. Ann. §§ 41-2102 and 41-2103 (Repl. 1977). A severance was granted. A jury acquitted him of the murder charge but convicted him on the alleged robbery charge and imposed a five year sentence. Appellant challenges the introduction of his in-custody statement and contends without it the evidence was insufficient to support the verdict; therefore, the cause should be dismissed. We affirm.

On December 14, 1978, at approximately 7 a.m., Morris Lillard was shot and killed at his general store and post office at Charlotte, Arkansas, and his cash register stolen. Appellant was arrested that evening for a prior unrelated burglary. Following a Miranda warning, he was interrogated at 3:20 a.m. the next day on the murder and robbery offenses, at which time he gave a non-incriminating statement as to his activities on the 14th. He received a visit later that day from his girl friend at her request. She told him she had made a statement implicating herself and him. Shortly thereafter, being again advised of his constitutional rights, he gave a second statement in which he admitted transporting his twin brother Donald and David Weaver to Charlotte around 6 a.m. on the 14th with the knowledge they were armed and going to rob Lillard. Also, he had taken them there the previous day for the same purpose, but the two were thwarted due to the number of people in the store. After the alleged robbery and murder, appellant and his girl friend disposed of the murder weapon.

Appellant first moved to suppress the statement on the grounds of involuntariness due to duress, enticement, misrepresentations and encouragement. This motion was denied after a hearing. Appellant filed an amended motion to suppress on the grounds the statement was obtained at a time when appellant was illegally incarcerated and as a pretext for questioning. This motion was also denied. The officers involved in the arrest and questioning testified at these hearings that appellant was initially arrested on a burglary charge. An officer had received information from an informant, whom he had successfully used before, that appellant was a “good suspect” for the burglary of a local grocery store several weeks earlier. Another officer understood that the informant buttressed his knowledge by stating he had heard the appellant talking about committing the burglary. The latter was refuted by the officer who was the recipient of the information. The officer, who made the decision to bring appellant in, admitted appellant was arrested because he thought appellant might also be involved in the Lillard case. He was one of several suspects, and the investigation had focused on him as a prime suspect. It was established that appellant had not, as yet, been charged with the burglary of the store, nor was he ever questioned concerning that incident. The only record of the arrest, the log book at the jail, showed appellant had been arrested for capital felony murder. The court ruled there were two arrests, the initial one being for the burglary and the second for murder and aggravated robbery after evidence came to light that appellant was connected with this offense.

Appellant contends the statement was obtained as the result of an illegal arrest and incarceration in violation of the Fourth Amendment and was inadmissible evidence, because the officers lacked probable cause to arrest him for the burglary or the murder. He argues the arrest was merely a pretext to provide an opportunity to question him, and the statement taken while he was illegally incarcerated was an exploitation of that arrest. He cites Brown v. Illinois, 422 U.S. 590 (1975), and Dunaway v. New York, 442 U.S. 200 (1979), in which that court held statements there should have been excluded as fruits of illegal arrests when there were insufficient intervening circumstances “attenuating the taint of arrest.”

Ark. Rules of Criminal Procedure, Rule 4.1 (Repl. 1977) provides:

a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed (i) a felony; ... (d) A warrantless arrest by an officer not personally possessed of information sufficient to constitute reasonable cause is valid where the arresting officer is instructed to make the arrest by a police agency which collectively possesses knowledge sufficient to constitute reasonable cause.

In Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976), we said:

. . . [P]robable cause is only a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the accused committed a felony, but not tantamount to the quantum of proof required to support a conviction . .. The existence of probable cause depends upon the facts and circumstances of which the arresting officer has knowledge at the moment of the arrest . . .
Determination of probable cause is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act. . .
. . . Constitutional standards permit common sense, honest judgments by police officers in their probable cause determinations.

There we also recognized that, on appeal, “all presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden of demonstrating error rests upon appellant.” When we view the totality of the facts here from the standpoint of common sense and with a pragmatic approach, the evidence is sufficient to constitute probable cause for appellant’s initial arrest.

Even though it be said that his initial arrest was illegal, as contended, we think there was a sufficient intervening circumstance which attenuated any taint of that arrest. As discussed previously, the appellant’s first statement was exculpatory and non-incriminating. Subsequently, a significant intervening act occurred; i.e., appellant’s girl friend, at her request, was permitted to see him. She reported to him she had told the officers about their involvement in the alleged offense, after being led to believe he had admitted his complicity. He responded that he had not. However, shortly thereafter, he decided to give the incriminating statement that is now claimed to be inadmissible because it is tainted by his asserted illegal arrest and incarceration.

In Sanders v. State, supra, we said:

. . . The United States Supreme Court did not hold that the taint of the illegal arrest, followed by the giving of the Miranda warnings, reached any and every such statement made by the arrested person regardless of the circumstances. Rather, that court stated that it is entirely possible that persons arrested illegally frequently may decide to confess as an act of free will unaffected by the initial illegality, that the question of voluntariness must be answered in each case upon the particular facts of the case . ..

Surely, Brown v. Illinois, supra, and Dunaway v. New York, supra do not require that, in these circumstances, that evidence is inadmissible after appellant was twice acquainted with his Miranda rights and had had considerable time, approximately 24 hours, for reflection and deliberation as to any statement he should make.

We next consider appellant’s argument that without the confession there was insufficient evidence to corroborate the testimony of Weaver, an accomplice, who detailed appellant’s complicity before and after the alleged offense. He correctly cites the rule that one cannot be convicted of a felony upon the testimony of an accomplice unless it is corroborated by other evidence tending to connect the defendant with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1977). Section 41-303 provides, inter alia, that one is an accomplice to the commission of an offense if, for the purpose of facilitating it, he aids another person in planning or committing it. When we consider appellant’s confession, which we hold voluntary, together with his testimony at trial where he admitted the truthfulness of his confession, except having knowledge of the criminal purposer of his codefendants, we find no merit in appellant’s argument there was insufficient corroboration of his accomplice’s testimony. Olles & Anderson v. State, 260 Ark. 571, 542 S.W. 2d 755 (1976).

Affirmed.


author: Robert H. Dudley, Justice. Richard B. Adkisson, Chief Justice,

text:
    BOARD OF TRUSTEES OF THE STATE POLICE RETIREMENT SYSTEM et al v. Arthur HALSELL
    80-123
    610 S.W. 2d 881
    Supreme Court of Arkansas
    Opinion delivered February 2, 1981

      Steve Clark, Atty. Gen., by: Alice Ann Bums, Asst. Atty. Gen., for appellants.

      Gill & Johnson, by: B. Kenneth Johnson, for appellee.
   Robert H. Dudley, Justice.

The single issue is whether payment at retirement for unused annual leave should be included as part of the average annual salary when computing the amount of a retirement pension for a State Police officer.

At his retirement from the State Police, the appellee, Arthur Halsell, had accrued annual leave for which he was paid a lump sum termination payment. The Director of the State Police advised appellee that this termination payment was not salary and would not be included in computing retirement benefits. The appellees then filed suit against appellants, the Board of Trustees of the State Police Retirement System, asking for declaratory judgment. The trial court ruled that the lump sum termination payment made to appellee should be included in his final average salary in computing his retirement pay. That decision is erroneous and is reversed.

The pension payable to a retiring State Police officer is based upon set percentages of his final average salary. Final average salary is defined by Ark. Stat. Ann. § 42-451 (B) (/) (Repl. 1977) as:

. . . the average of the annual salaries paid a member for the three (3) years of credited service rendered by him immediately preceding his last termination of employment with the Department, provided that the final average salary shall not exceed that of the highest permanent rank.

The appellant has computed the compensation paid to appellee for services rendered over the past three years. The appellee is asking that the termination benefit, which is equal to one month’s unused leave, be added to the three years’ salary. In other words, use 37 months to compute three years. The statute contemplates using the past 36 months’ salary in computing “the average of annual salaries paid a member for the three years of credited service.”

Ark. Stat. Ann. § 13-349 (A) (Repl. 1979) clarifies the legislative intent, as follows:

* * * Provided that the remuneration paid to an employee of the State may exceed the maximum annual salary as authorized by the General Assembly as follows, and the following shall not be construed as payment for services or as salary as contemplated by Section 4 of Article 16 of the Constitution of the State of Arkansas'.
(1) Overtime payments as authorized by law;
(2) Payment of a lump sum to a terminating employee',
(3) Payment for overlapping pay periods at the end of a fiscal year as defined or authorized by law.
[Emphasis added.]

The language in the statute is clear that the lump sum termination benefit should not be considered as salary. Therefore, it should not be added to the appellee’s average salary for the purpose of computing his retirement pension.

An objective of the General Assembly in prohibiting the termination pay from being counted as part of the average annual salary is to prevent a distinction in retirement benefits from one State Police officer who took a vacation as opposed to one who did not take a vacation.

The appellee argues that he has a vested right to have his termination payment included in his retirement pension, since it had been done in the past, and this was a factor in his continued employment.

Appellee has not acquired such a vested right. He had been employed by the State Police since 1947, and the lump sum termination pay statute, Ark. Stat. Ann. § 13-349 (L), was enacted in 1973. There is no proof in the record of the State Police retirement policy or practice before 1973, and we do not speculate on either what the policy was or whether it was a factor in his continued employment. Hence, no vested right was acquired before 1973.

A former member of the retirement board, Tommy Goodwin, testified that since 1975 four or five officers had the lump sum termination benefit added to their annual salary for computing retirement pay. However, since 1973 the statute has prohibited counting the lump sum termination benefit as salary. Appellee cannot gain a vested retirement right from an unauthorized administrative procedure which is contrary to a statute. Therefore, no vested right was acquired after 1973.

Reversed.

Adkisson, C.J., and Holt, J., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. The majority correctly state the issue, which is whether the lump sum payment for accrued annual leave is salary for the purpose of computing retirement benefits under the State Police Retirement System.

Appellant’s retirement benefits are based upon his “final average salary.” Ark. Stat. Ann. § 42-451(B)(¿) (Repl. 1979). “Salary” means the compensation paid a member for service rendered by him as a state police officer.” Ark. Stat. Ann. § 42-451 (B)(k) (Repl. 1979).

Accrued annual leave is additional compensation earned by the employee. Ark. Stat. Ann. § 13-349(L) (Repl. 1979). And, it is based upon completed months of service. Ark. Stat. Ann. § 12-2367(a) (Repl. 1979). When the employee retires, the unused annual leave to his credit is paid to him as a lump sum payment. Ark. Stat. Ann. § 12-2367(k) (Repl. 1979).

Since lump payments are earned compensation for service rendered, those payments must be included as “salary” for the purpose of computing retirement benefits. Under the act creating the State Police Retirement System, the only exclusion from salary is “reimbursement for lodging, meals, or travel expense.” Ark. Stat. Ann. § 42-451(B)(k) (Repl. 1979).

The majority’s conclusion that appellant seeks to use 37 months to compute three years’ salary is unfounded. Thirty days is the maximum time accruable and subject to lump sum payment; however, it must have been earned within the last three years. Ark. Stat. Ann. § 12-2367(a) and (k) (Repl. 1979). Payment for overtime, lump sum accrued leave, and overlapping pay periods are variable components of salary which must necessarily inflate the line item (fixed) salary set by the Legislature. And, when the total salary is computed for each employee, it is likely that each salary will differ. Since all salaries are computed under the same statutes, there is no discrimination among employees.

The majority, in attempting to buttress their conclusion, misconstrue Ark. Stat. Ann. § 13-349(A) (Repl. 1979) by ignoring its provision which excludes lump sum payments, overtime payments, and overlapping pay, as salary, only “as contemplated by Section 4 of Article 16 of the Constitution of the State of Arkansas.”

This court has previously delineated what is contemplated by Section 4 of Article 16 of the Arkansas Constitution in Director of Bureau of Legislative Research v. Mackrell, 212 Ark. 40, 204 S.W. 2d 893 (1947); there we said the primary purpose of this provision is “to prevent the expenditure of the people’s tax money without having first procured their consent, expressed in legislative enactments which do not contravene these constitutional provisions.”

Here, it is not contested that the Legislature appropriated the funds for payment of the additional compensation for overtime, lump sum accrued annual leave, and overlapping pay periods. Although these payments are necessarily variable, they nevertheless represent compensation for service rendered as enacted by the Legislature. As stated earlier, the terms “salary” and “compensation” are used interchangeably in the statutes under consideration. This usage is further evidenced by Ark. Stat. Ann. § 12-2501Q) (Repl. 1979) (State Employees Retirement System Act) which states: “Compensation means the salary or wages paid ... by a public employer . . . for personal services rendered. ...”

The undisputed evidence before the trial court was that both “the overtime payments referred to in Ark. Stat. Ann. § 13-349(A)(1) and payment for overlapping pay periods in § 13-349(A)(3) are clearly compensation for services and therefore salary under the law.” The payment for lump sum annual leave which is sandwiched between these provisions in Ark. Stat. Ann. § 13-349(A)(2) must, therefore, also be salary.

The trial court correctly held:

The purpose of Ark. Stat. Ann. § 13-349(A) is to avoid the constitutional line item restriction on salaries [the fixed component of salary] set forth in the Arkansas Constitution, Art. 16, Sec. 4. The lump sum payment to the plaintiff at his retirement was for services rendered and constitutes salary [the variable component of salary] within Ark. Stat. Ann. §§ 42-45l(B)(k) and 12-2501(J).

The legislative intent in this case can be determined from the plain language expressed in this legislation. No room is left for this court to speculate as to what we think the language should have said.

For the reasons stated, I would affirm.

I am hereby authorized to state that Holt, J., joins me in this dissent.


author: Steele Hays, Justice.

text:
    STATE of Arkansas v. Curtis RUSSELL
    CR 80-229
    611 S.W. 2d 518
    Supreme Court of Arkansas
    Opinion delivered February 16, 1981

      Steve Clark, Atty. Gen., for appellant.

      Jack Holt, Jr., for appellee.
   Steele Hays, Justice.

This interlocutory appeal by the state is the second time this case has been before us. Appellee Russell was tried on April 16 and 17, 1979, and convicted of first degree murder. A material witness for the state was unable to attend the trial due to illness, and the trial court permitted his video-taped deposition to be used in evidence, over the objection of the defendant. That conviction was reversed in Russell v. State, 269 Ark. 44, 598 S.W. 2d 96 (1980), for the reason that at the time of Russell’s trial the law in Arkansas did not permit the use of a deposition by the state in criminal trials. That rule was changed by Act 1022 of 1979 [Ark. Stat. Ann. § 43-2011 (Supp. 1979)], but the act did not take effect until April 18, 1979, the day after Russell was tried.

Following remand, the state again sought to use the deposition, the witness having died, and moved for a pretrial ruling as to its admissibility. The trial court held that the deposition was not admisisble under the decision reached in the first appeal, notwithstanding the demise of the witness. The state brings this interlocutory appeal contending that the deposition was admissible.

We do not reach the appeal on its merits, as the order appealed from is not an appealable order, a jurisdictional requirement which the court itself may raise. Alexander v. State, 260 Ark. 785, 545 S.W. 2d 606 (1976).

Prior to the adoption of the Arkansas Rules of Criminal Procedure in 1976, the state had no right of interlocutory appeal. It could appeal only after judgment in conformance with § 329 of the Criminal Code (Ark. Stat. Ann. § 43-2720), now embodied in Rule 36.10. The state now has a statutory right to an interlocutory appeal in some instances, but under the Rules of Criminal Procedure the state may take an interlocutory appeal only with respect to an order prior to the commencement of trial granting a motion to suppress evidence alleged to be illegally seized, as provided in Rule 16.2(d). State v. Glenn and Hamilton, 267 Ark. 501, 592 S.W. 2d 116 (1980). The procedure for appeals by the state both interlocutory and after judgment, is governed by Rule 36.10.

The order here appealed from dealt only with the admissibility of evidence in the form of a deposition and not with the suppression of evidence and hence was not appealable.

Appeal dismissed.

Holt, J., not participating.


text:
    Robert H. ROBINSON, Administrator, and Betty WOOD v. James E. MAYS and John P. MAYS
    80-195
    610 S.W. 2d 885
    Supreme Court of Arkansas
    Opinion delivered February 2, 1981

      Randall W. Ishmael and Richard A. Jarrett, for appellants.

      Howard & Howard, by: William B. Howard, for appellees.
   Steele Hays, Justice.

The issue raised by this appeal is whether two sons are pretermitted children under the will of their mother within the meaning of Ark. Stat. Ann. § 60-507(b) (Repl. 1971). The lower court held that they are and, as such, entitled to share in the estate. We consider the holding to be correct.

Appellant, Betty Wood, is a half sister of appellees, James E. May and John P. Mays. The Mayses are children of the first marriage of Edna King Kreager and Betty Wood is the child of a second marriage. All were living when Mrs. Kreager executed her will in Missouri, where she resided. Her death occurred some two weeks later.

The will made no mention of James or John Mays; it left the entire estate to Betty Wood, but if she failed to survive, then to her husband, John, and their two sons, John and Steven, in equal parts. If none of these survived, paragraph 4(c) of the will provided that the estate would devolve to those persons who would be entitled to share in the distribution of the estate in accordance with the laws of descent and distribution of the State of Missouri.

Mrs. Kreager owned lands in Arkansas and ancillary administration was begun here, where appellees petitioned for a determination of heirship, raising the issue of pretermitted children. The pertinent proviso of 60-507(b) is that if, at the time a will is executed, there is a living child whom the testator “shall omit to mention or provide for, either specifically or as a member of a class” then such child shall take as if there had been no will.

The Probate Court held that appellees were pretermitted children and appellants have appealed, urging that the will sufficiently provided for appellees as members of a class within the meaning of the statute.

Appellants concede that appellees are not specifically mentioned in the will, but they argue that they are identified as those persons whom the testatrix intended to take under paragraph 4(c) if Betty Wood and the other named devisees did not survive.

It is correct that if all of the Wood family predeceased Mrs. Kreager with no afterborn children, the estate would pass to the appellees under the combined language of paragraph 4(c) of the will and laws of descent and distribution of Missouri. But is this sufficient under 60-5 07(b)? We think not.

The purpose of this statute is not to interfere with the right of a person to dispose of his property according to his own will, but to avoid the inadvertent or unintentional omission of children (or issue of a deceased child) unless an intent to disinherit is expressed in the will. Branton v. Branton, 23 Ark. 569 (1861). Thus, where the testator fails to mention children or provide for them as member of a class, it will be presumed that the omission was unintentional, no contrary intent appearing in the will itself. In Cockrill v. Armstrong, 31 Ark. 580 (1876), the presumption is described in these terms:

So strong is the presumption that a father would not intentionally omit to provide for all his children, that in case the name of one or more of the children is left out of the will, by statute it is held to be an unintentional oversight, and the law brings them within the provisions of the will, and makes them joint heirs in the inheritance.

Appellants concede the absence of exact precedent for their position, but rely on Powell v. Hayes, 176 Ark. 660, 3 S.W. 2d 974 (1928) and Taylor v. Cammack, 209 Ark. 983, 193 S.W. 2d 323 (1946). In both cases, children of the testator were not specifically mentioned, but were held to be contemplated by the testator in using the term “heirs” in the will. In Powell the language considered was “the balance of my property to my wife and heirs, as the law provides.” The court observed that “heir,” when used in its technical sense, includes more than just children, but is often used in a nontechnical sense to mean children and held that it was in this sense that the testator used the word, thereby mentioning his children as a class.

Similarly, in Taylor v. Cammack, the court held that in using the word “heirs” the testator referred to his children, noting that his only heirs were the children.

But we are unwilling to further extend the reasoning of these decisions by accepting appellants’ argument, especially when to do would be to work against the purpose of 60-507(b), rather than with it. The decision in neither Powell nor Taylor resulted in the disinheritance of some children to the preference of others as appellants would have us do. This, we believe, would be the antithesis of 60-507(b).

Besides, we cannot with confidence arrive at the conclusion that Mrs. Kreager had her sons so clearly in mind as to have met the requirements of the statute by providing that if her other devisees predeceased her, her estate should pass to those undesignated persons who would be entitled to share in her estate under the laws of descent and distribution of Missouri. Appellants contend that this intent by Mrs. Kreager must be presumed, because of the view first announced in Moody v. Walker, 3 Ark. 147 (1840) and in Crittenden v. Lytle, 221 Ark. 302, 253 S.W. 2d 361 (1952), that a testator is presumed to understand the meaning of technical phrases used in a will.

The rule is sound, but where, as here, it conflicts with the presumption against disinheritance, then it must yield, as in Armstrong v. Butler, 262 Ark. 31, 553 S.W. 2d 453 (1977). The former presumption is judicially created to aid in construing wills, whereas the latter is statutory. In Armstrong the court stated that 60-507 “goes much further than creation of a presumption. It states the effect of omission of a child or the issue of a deceased child in clear and distinct language, without admitting of any exception.”

Appellees point to the most telling errancy of appellants’ position, and that lies in the dicta of the cases they rely on. The reasoning of Powell and Taylor is that the testator used the word “heirs” in a colloquial sense to mean children, and not in the strict sense, which would not comply with 60-507. Clearly, the language of paragraph 4(c) of the will, on which appellants depend, is technical and in making reference to the laws of descent and distribution, the usage contemplates heirs in the literal sense.

We think the Probate Court was mindful of the strong presumption against disherison and the requirement that wills are to be liberally construed to reach a just conclusion and, hence, we affirm. Brown v. Nelms, 86 Ark. 368 (1908).

Affirmed.


text:
    Chester A. TREADWELL v. STATE of Arkansas
    CR 80-113
    610 S.W. 2d 884
    Supreme Court of Arkansas
    Opinion delivered February 2, 1981

      E. Alvin Schay, State Appellate Defender, by: Deborah R. Sailings, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

On March 24, 1975, the appellant, Chester A. Treadwell, entered a plea of guilty to the charge of capital felony murder in the death of Lewis G. Boyd. In accordance with that plea, the court sentenced the appellant to life imprisonment without parole. On September 14, 1978, appellant filed a petition pro se for post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure (Repl. 1977), seeking to withdraw his original plea of guilty and enter a plea of not guilty. The court below held a hearing on appellant’s Rule 37 petition and, after taking testimony, denied the petition.

The appellant now brings this appeal urging as his sole ground for reversal that there was insufficient evidence to establish a factual basis for the guilty plea under Rules of Crim. Proc., Rule 24.6 (Repl. 1977). Upon a review of the record in this case, we conclude that there was sufficient evidence of a factual basis for appellant’s original plea of guilty. The court below therefore properly denied the relief requested under Rule 37 and we affirm.

Rules of Crim. Proc., Rule 24.6, provides:

The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.

In the original proceeding of 1975, the prosecution made an extensive offer of proof in which the state named each witness the state would call and recited in detail the evidence that would be elicited to prove each element of the capital felony murder, should the case proceed to trial. After hearing the state’s offer of proof, the trial court inquired of the defendant as to his awareness of his rights. And after being assured by the defendant that he knew and appreciated the alternatives open to him, the court asked if the defendant still desired to plead guilty. The defendant answered that he did. The court then went on to ask if he wanted to plead guilty because he was in fact guilty of the charge. Again the defendant answered affirmatively.

Although we are disposed to find that this was sufficient to meet the requirements of Rule 24.6, we need not rely entirely upon that proceeding. As we have held in Byler v. State, 257 Ark. 15, 513 S.W. 2d 801 (1974), and again in Deason v. State, 263 Ark. 56, 562 S.W. 2d 79 (1978), any defect in the record under Rule 24.6 may be cured in a post-conviction Rule 37 proceeding. At the hearing on the defendant’s Rule 37 petition, the trial court inquired of the defendant’s knowledge of the facts and circumstances of the victim’s death. At the proceeding, the defendant testified that he had full knowledge of everything about the case.-The defendant also stated that he knew, at the time of his original guilty plea, all of the facts surrounding the homicide and that he knew of all the circumstances of Lewis G. Boyd’s death.

Taking both of these proceedings together, we are drawn to the conclusion that the court had before it sufficient evidence to establish a factual basis for the plea in accordance with Rule 24.6 and that the plea was knowingly and voluntarily entered. The trial court properly denied the appellant’s Rule 37 request to withdraw his original plea of guilty. We therefore affirm.


author: PER CURIAM.

text:
    Carl Albert COLLINS v. STATE of Arkansas
    CR 75-110
    611 S.W. 2d 182
    Supreme Court of Arkansas
    February 2, 1981

      Thomas M. Carpenter, for petitioner.

      Steve Clark, Atty. Gen., by: Victra L, Ferrell, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner Carl Albert Collins was convicted by a jury in 1974 of capital felony murder and sentenced to death by electrocution. The primary issue on appeal was the constitutionality of Act 438 of 1973, Ark. Stat. Ann. § 41-4701 et seq (Supp. 1973), which reinstated the death penalty. This Court found the statute constitutional and affirmed the conviction on December 22, 1975. Collins v. State, 259 Ark. 8, 531 S.W. 2d 17 (1975). Motion to stay mandate pending appeal to the United States Supreme Court was granted February 2, 1976. Petition for certiorari for review of this Court’s judgment affirming the judgment of the circuit court was filed in the United States Supreme Court and that Court vacated this Court’s judgment insofar as it left the death penalty imposed and ordered the cause remanded for consideration in light of Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1916); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); and Roberts v. Louisiana, 428 U.S. 325 (1976). Mandate vacating judgment was filed in this Court November 18, 1976. Upon reconsideration, the Arkansas Supreme Court again concluded that the death penalty under Arkansas statutes was constitutional and affirmed the judgment on March 7, 1977. Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977). Certiorari was denied and the mandate was forwarded to the governor of this state October 25, 1977. The United States Supreme Court denied rehearing on November 28,1977, at 434 U.S. 977 (1977).

Collins filed his petition for permission to proceed under Rule 37 on December 19, 1980, more than three years after the United States Supreme Court denied rehearing. Rule 37.2(c), Arkansas Rules of Criminal Procedure, Ark. Stat. Ann. V. 4A (Supp. 1974) provides that such a petition must be filed within three years of the date of commitment. The petition is clearly untimely and will be denied unless the grounds asserted are such as to render the judgment against Collins void. Since we find no grounds contained in Collins’ petition which will render the judgment void, the petition is denied.

Rule 37 was not intended to provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973). As the Rule states, it affords a remedy when the sentence was imposed in violation of the constitution of the United States or of this State or “is otherwise subject to collateral attack.” Rule 37.1; Swisher v. State, 257 Ark. 24, 514 S.W. 2d 218 (1974); Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553 (1969); Clark v. State, 242 Ark. 584, 414 S.W. 2d 601 (1967). The present petition presents a number of issues all of which are alleged to raise issues so fundamental as to render the sentence and judgment void and open to collateral attack. The issues, however, could, and should, have been raised at trial or on direct appeal. It is well settled that constitutional questions are waived if not raised in accordance with controlling rules of procedure. Moore v. Illinois, 408 U.S. 786 (1952); Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 934, reh. denied, 268 Ark. 315, 599 S.W. 2d 729 (1980); Williams v. Edmondson, 257 Ark. 837, 250 S.W. 2d 260 (1975); Orman v. Bishop, 245 Ark. 887, 435 S.W. 2d 440 (1968). As stated in Hulsey, supra, in this Court, contentions not argued by the appellant on first appeal are waived. Sarkco v. Edwards, 252 Ark. 1082, 482 S.W. 2d 623 (1972). It is imperative that judgments in criminal cases have stability and finality. Hulsey, supra.

Petitioner first alleges that the judgment is void pursuant to Turner v. Louisiana, 379 U.S. 466 (1965) because a material witness at the trial, Sgt. Quimby Johnson, also worked as a “security person and perhaps a bailiff for the jury.” In Turner two deputy sheriffs who were the principal prosecution witnesses were in continuous association with the jurors, eating dinner with them, running errands for them and driving them to and from the lodgings. The Court found that the two had been the “official guardians” of the jury and that the jury was likely to find their testimony more credible by virtue of that relationship. Here, the petitioner has offered nothing to show that such a relationship existed; however, the record does indicate that Sgt. Johnson served in some capacity as a security officer.

MR. GIBSON (Prosecuting Attorney): For purpose of security in the courtroom, the State would request that the Rule be waived as to Sheriff s Deputy Snow and Sgt. Quimby Johnson,, Investigator, both of which may or may not testify. There is a possibility they will, but they are about the only good security officers we have.
THE COURT: There might be some sort of feeling in the local community, so for the protection . . .
MR. LINEBERGER (Defense Counsel): We have no objections. We have discussed that with the prosecutor.
THE COURT: I think we should have adequate protection against any kind of emotional outburst that might arise.
MR. GIBSON: Their testimony would be relatively minor.
THE COURT: Then it’s agreeable?
MR. LINEBERGER: It’s agreeable, your honor.

The allegations of the petition are apparently based on this exchange, but the petition does not offer sufficient evidence to warrant setting the conviction aside. Petitioner also alleges, that even if this Court does not find merit to the allegation that Sgt. Johnson’s presence in the courtroom renders the judgment void, there remains a question of whether counsel was ineffective in failing to object to his presence. This allegation shall be addressed later.

Petitioner next alleges that the judgment is void because the trial court excused several members of the jury venire without affording counsel the opportunity to voir dire them on their reasons for not wishing to serve. No objection was made by the trial counsel to the potential jurors’ being excused by the Court and the matter could not therefore be properly raised on appeal. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978). Petitioner asserts that the exclusion of these jurors for cause violated this Court’s ruling in Hall v. State, 259 Ark. 815, 537 S.W. 2d 155 (1976). This argument is without merit. In Hall, the trial court excused all farmers (some 25-30 persons) without requiring any of them to appear and ask to be excused, and this Court found such a practice to be deliberate and systematic exclusion of a large class of eligible jurors, Hall, at 818-819.

In the instant case, the trial court heard the reasons given by the four potential jurors for not wishing to serve and properly exercised its discretion in excusing them. Furthermore, even though students are not listed in Ark. Stat. Ann. § 39-108 (Supp. 1979) as persons exempt from service, the trial court has the discretion to excuse any juror “when, for any reason, his own interests or those of the public will, in the opinion of the Court be materially injured by his attendance.” Ark. Stat. Ann. § 39-107 (Supp. 1979).

Petitioner also challenges the judgment on the grounds that the lack of individual, sequestered voir dire made the jury selection process unreliable. In support of his allegation, petitioner cites only one case, the 1980 California Supreme Court opinion in Hovey v. Superior Court of Alameda County, 28 Cal. 1, 616 P. 2d 1301, 168 Cal. Reptr. 128, 181 (August 28, 1980), which we do not consider controlling. Petitioner has presented nothing to show that petitioner was entitled to an individual, sequestered voir dire.

Petitioner argues that the judgment is void because the Court had a duty to instruct the jury on all possible lesser included offenses, including murder in the first degree. Petitioner alleges that Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979) imposes a duty upon the trial court to give instructions on all applicable lesser included offenses even though defense counsel has not requested such instructions. There is no such duty imposed on the trial court by Westbrook. Westbrook presented a situation quite different from this case. There the case went to the jury with only one possible conviction — capital murder. In petitioner’s case the jury was instructed as to second degree murder and clearly had a choice as to whether either charge was supported by the evidence. This Court has recently reiterated that it is reversible error to refuse to give a requested instruction where there is the slightest evidence to warrant such an instruction, Brewer v. State, 271 Ark. 254, 608 S.W. 2d 363 (1980); Robinson v. State, 269 Ark. 90, 598 S.W. 2d 241 (1980), but no duty was placed on the trial court to give an instruction not requested by counsel. If counsel concludes that a particular instruction is warranted, it is incumbent upon counsel to request that instruction.

Petitioner next contends that the judgment is void because Act 438 of 1973 unconstitutionally placed a burden on petitioner to prove mitigating circumstances and unconstitutionally limited the factors that could be considered in mitigation, a violation of the “premise” in Lockett v. Ohio, 438 U.S. 568 (1978). In Lockett, a four-judge plurality held that the “Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, at 605. This Court has considered the effect of Lockett, in Neal v. State, 270 Ark. 442, 605 S.W. 2d 421 (1980). In Neal, as in this case, where the appellant argued that Ark. Stat. Ann. § 41-4701 et seq. (Supp. 1973), repealed by Act 280 of 1975 (Crim. Supp. 1975), unconstitutionally limited the mitigating circumstances the jury could consider, this Court found:

The Ohio statute considered in Lockett was quite unlike the Arkansas statute applied in Neal’s trial. That Ohio law required a trial judge to impose the death penalty unless he found by a preponderance of the evidence that (1) the victim had induced or facilitated the offense, (2) it was unlikely that Lockett would have committed the offense but for the fact that she was under duress, coercion or strong provocation, or (3) the offense was primarily the product of the accused’s psychosis or mental deficiency. The statute under which appellant was tried was materially different. It permitted evidence in the sentencing stage as to any matters relevant to sentencing. Ark. Stat. Ann. § 41-4710 (c) (Supp. 1973). Under that Act (Ark. Stat. Ann. § 41-4701 et seq. [Supp. 1973]), the jury was not compelled to impose the death sentence whenever it found aggravating circumstances but no mitigating circumstance, unless it also found, that sufficient aggravating circumstances existed beyond a reasonable doubt to justify a sentence of death. Neal, 270 Ark. at 449-450.

As in Neal, this Court finds that the statute does not unconstitutionally limit the factors that can be considered in mitigation. Further, this argument was addressed by the Court on first appeal and this Court found that Act 438 of 1973 was valid.

With regard to petitioner’s allegations that Act 438 of 1973 unconstitutionally placed a burden on petitioner to prove mitigating circumstances, this Court held on first appeal that the state had the burden of proof in the issue of punishment. Collins, 259 Ark. at 15.

Finally, petitioner alleges ineffective assistance of counsel. Inadequate representation by counsel is a ground for postconviction relief where there has not been an adequate opportunity to raise the question prior to direct appeal. Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463 (1976). Errors, omissions, improvident strategy or bad tactics on the part of counsel do not require an evidentiary hearing on an allegation of ineffective assistance of counsel or justify postconviction relief from a sentence. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973). The petitioner must first show prejudice by the alleged incompetence of counsel. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973). An evidentiary hearing is not required when the allegations of ineffectiveness relate only to matters ordinarily within the realm of counsel’s judgment. Leasure, supra. The question presented in an evidentiary hearing is whether the petitioner has shown by a preponderance of the evidence that the acts or omissions of the attorney resulted in making the proceedings a farce and mockery of justice shocking to the conscience of the court. Sheppard v. State, 255 Ark. 40, 498 S.W. 2d 668 (1973). This Court has said that “the mockery of justice” standard for the determination of ineffectiveness of counsel is not to be taken literally. It does, however, place a substantial burden on the petitioner in proving that counsel was inadequate. McDonald v. State, 257 Ark. 879, 520 S.W. 2d 292 (1975). Petitioner in this case had the burden of showing clearly and convincingly that his attorney was so patently lacking in competence that it became the duty of the trial court to be aware of it and to correct it. Petitioner has not met that burden.

In considering petitioner’s entitlement to a postconviction hearing on the ground of ineffectiveness of counsel, we are limited to the allegations of the petition. Petitioner alleges that his counsel did not:

1. Object to the exclusion of the four jurors discussed earlier;
2. Object to Sgt. Johnson’s serving as a security officer at the trial;
3. Request an individual, sequestered voir dire of the jury;
4. Attempt to rehabilitate juror Benton Wray;
5. Request an instruction on the lesser included offense of murder in the first degree;
6. Put on any evidence during the penalty phase of the trial and did not request that the “instructions on mitigation be modified to conform with the law;”
7. Object to the introduction into evidence of a prior conviction under a “First Offenders Act;” and
8. Object to instructions on mitigation.

With regard to the first allegation, we have stated that it was within the discretion of the trial court to excuse the jurors in question. Further, petitioner has not shown that he was prejudiced by the court’s action or that counsel’s failure to object was not a legitimate trial tactic.

The matter of counsel’s failure to object to Sgt. Johnson’s presence in the courtroom for security purposes would present a more pressing question if the petitioner had offered any substantiation for the allegation that petitioner was prejudiced by Sgt. Johnson’s presence. As petitioner correctly contends, a witness should not be allowed to interact with the jury to the extent that his credibility is enhanced in the eyes of the jurors, but petitioner has failed to show that Sgt. Johnson had any direct contact with the jury during the trial. The mere allegation, without support, that Johnson was “perhaps” a bailiff for the jury does not establish in itself that petitioner suffered any prejudice by counsel’s agreeing that Johnson should remain in the courtroom.

Counsel’s failure to request an individual sequestered voir dire was not an error on counsel’s part. Petitioner was able to cite only one jurisdiction in this county which requires such voir dire. It is obvious that counsel should not be expected to request what amounts to an extraordinary practice.

Petitioner alleges that counsel should have attempted to rehabilitate Benton Wray, a juror who stated in voir dire that he would not consider capital punishment “under any circumstances.” Petitioner contends that Witherspoon v. Illinois, 391 U.S. 510 (1968) and Davis v. Georgia, 429 U.S. 122 (1976) somehow place a duty on counsel to examine at length a witness who states opposition to the death penalty in hopes of getting him to equivocate. This argument is without merit. Counsel’s decision not to question a particular juror is within the realm of trial strategy.

Petitioner next argues that counsel was obligated to request an instruction on the lesser included offense of murder in the first degree, or at least, that counsel was obligated to record the reasons for not requesting such an instruction. Petitioner presents no support for this argument, and we find no duty to request an instruction on the lesser included offense of murder in the first degree in capital cases. It is reasonable to assume that counsel chose not to request the instruction on murder in the first degree as a matter of trial tactics and strategy. This Court found on appeal that there was sufficient evidence to sustain a conviction of capital felony murder. Collins, 261 Ark. at 223, and petitioner has not shown that he was prejudiced by counsel’s not requesting an instruction on murder in the first degree.

Counsel did not put on any evidence during the penalty phase of the trial and petitioner alleges that this can only be deemed ineffective assistance of counsel. Petitioner fails, however, to cite any evidence that was available. Clearly, counsel is not obligated to manufacture evidence if none exists. Since petitioner presented no specific evidence that could have been presented in mitigation, we cannot say that counsel was remiss in not presenting testimony during the penalty phase. Petitioner further alleges that counsel should have objected to the introduction into evidence of a prior conviction under “a First Offenders Act.” The record indicates petitioner was sentenced in 1973 to seven years in the Arkansas Department of Correction with four years suspended for armed robbery. The commitment order recommends that petitioner be incarcerated “at Tucker Prison with first offenders. . . .” The record does not support petitioner’s allegations that he was sentenced as part of a first offenders program and counsel therefore cannot be held accountable for failure to object to introduction of the conviction on that ground.

Petitioner also stated that counsel should have objected to “explanations” concerning the prior offense given by the trial court. He does not enlarge on this and this Court cannot search the record seeking to determine what is behind petitioner’s conclusory allegation.

Finally, petitioner argues that counsel should have objected to the instruction on mitigation that allegedly placed a burden on petitioner to prove mitigating circumstances beyond a reasonable doubt. The record shows that counsel for petitioner did object to the trial court’s instruction on mitigating circumstances (T. 277) and the trial court responded by clarifying its remarks:

The matter of mitigating circumstances is an opportunity the defendant has. There is no burden on him at all. The burden is on the state in the whole case . . . (T. 278).

Petition denied.


author: James R. Cooper, Judge.

text:
    FOLK CONSTRUCTION COMPANY and WILLIAM L. JOHNSON COMPANY, INC. v. SUN PIPE LINE COMPANY
    CA 80-293
    611 S.W. 2d 198
    Court of Appeals of Arkansas
    Opinion delivered February 4, 1981

      Spears, Sloan & Johnson, by: James A. Johnson, Jr., for appellants.

      Skillman & Durrett, by: Chadd L. Durett,Jr., for appellee.
   James R. Cooper, Judge.

This appeal is from a decree of permanent injunction granted by the Chancery Court of Crittenden County, Arkansas, in which that court permanently enjoined appellants from removing earth from within 150 feet of appellee’s property and easement lines. The order denied all other prayers for relief and for damages and assessed costs of the action against appellants. The complaint of the appellee was filed July 21, 1976, and a hearing was held on July 28, 1976. The complaint prayed for a temporary injunction enjoining appellants from continuing excavation pursuant to an agreement between appellants for the removal of borrow material from 6 acres of land owned by the Johnson Company located between 2 tracts of land owned by appellee. The borrow material was to be used as fill material for a Union 76 Truck Stop, pursuant to a contract between Folk and the contractor on that project. One tract of land owned by appellee was adjacent to the Mississippi River on its west bank, and was the site of barge loading facilties. Appellee had an easement across the Johnson land for its pipelines to other facilities which were located on land which was adjacent to the Johnson property on the west side. The complaint alleged that appellee had no adequate remedy at law and that unless appellants were restrained from excavation pursuant to the agreement (the terms of which were unknown to appellee) the barge loading facilities were likely to be totally destroyed resulting in great or irrevocable injury to appellee.

Following the hearing, the Court granted a temporary injunction, and provided two alternative forms of injunction, with the choice as to which option, to use being left to appellee. The first option provided that upon the posting of a surety bond in the amount of $25,000.00, appellants were to be enjoined from further excavation as complained of in the complaint within 100 feet of appellee’s property and easement lines. The second option provided that upon the posting of a surety bond in the amount of $100,000.00, then appellants were to be enjoined from any further excavation as complained of in the complaint. Appellee chose the second option. Following trial the Court issued a memorandum opinion and a final decree of permanent injunctions was entered March 12, 1980. That order enjoined appellants from removing earth from within 150 feet of appellee’s property and easement lines and denied claims for damage, primarily based on its allegation that it was forced to buy and haul from distant pits at a greater cost. From those decisions of the trial court comes this appeal.

Appellant first alleges that the Chancery Court erred in not awarding monetary damages when the Court made permanent only a portion of the temporary injunction. Appellant argues that it is clear that the trial court enjoined less excavation in its order of permanent injunction. Appellee argues that the planned excavation initially enjoined was less than that which was enjoined in the permanent injunction.

Ark. Stat. Ann. § 32-307, (Repl. 1977) states;

.... upon the dissolution in whole or in part of any injunction or restraining order of any and every kind and nature whatsoever, the Chancery Court wherein the same was pending may assess and render against the principal and sureties on the injunction bond, a valid judgment for any and all damages occasioned by the issuance of any such injunction or restraining order. . . .

We are unable to say that the permanent injunction was narrower in scope than the temporary injunction and, in any event, since the award of damages under the above cited statute is discretionary with the trial court, in order to reverse on this ground we would have to find that the Chancellor abused his discretion. We do not so find.

Evidence was presented to the Chancellor which indicated that the dirt removed from the Johnson property was not suitable for the completion of the contract between Folk Construction Company and Union 76 and that appellant Folk has determined prior to the issuance of the temporary injunction that another site for fill dirt would have to be located. The Chancellor could easily have found, under these circumstances, that since appellant Folk was obligated to provide fill dirt of a certain specification which was not available at this site then it could not have incurred damages as a result of the temporary injunction. Therefore the trial court may have denied an award of damages on any one of three bases: First, that the fill dirt was not suitable for purposes of the Union 76 contract, and therefore damages, if any, were not attributable to the issuance of the temporary injunction; second, that the permanent injunction was at least equal to or greater than the temporary injunction; or third, the trial court could have found that damges were not proved. In any case, the award of damages was discretionary with the trial court and unless clearly against the preponderance of the evidence or clearly erroneous we will not disturb the Chancellor’s findings. Rule 52, Arkansas Rules of Civil Procedure. We find no abuse of discretion here.

For its second point for reversal appellant claims that the Court erred in not allowing Folk to prove all damages resulting from the temporary injunction. Appellant Folk attempted to amend its pleadings during trial, after this case had been on file for almost 3 years and the trial court denied its motion to amend and refused to allow further testimony related to alleged damages not pled. A determination of whether to allow amendments to pleadings is clearly discretionary. We hold that the trial court did not abuse its discretion in refusing to allow an amendment to the pleadings at such a late date. Shoptaw v. Puterbaugh, 263 Ark. 778, 567 S.W. 2d 288 (1970).

The third point alleged as error by appellant is that the issuance of the permanent injunction was not supported by a preponderance of the evidence. We find this contention to be without merit.

This case involved extensive pleadings, discovery and the testimony included conflicting testimony of several expert witnesses. The testimony of the expert witnesses in this case was detailed and complex and the Chancellor was in a better position to judge the weight to be given their testimony than is this Court. Minton v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974). Rule 52 of the Arkansas Rules of Civil Procedure provides that this Court should not reverse the findings of a Chancellor on the value and weight to be given to the testimony of experts unless his findings are clearly erroneous (clearly against the preponderance of the evidence).

Having heard all the witnesses and examined the exhibits, the Chancellor found that the removal of earth as contemplated by appellants within 150 feet of appellee’s property and easement lines would result in irreparable injury to the property of appellee. These findings by the Chancellor are not clearly erroneous or against the preponderance of the evidence. To the contrary, his findings are clearly supported by a preponderance of the evidence.

Finding no error, we affirm the decision of the Chancellor.

Corbin, J., not participating.