author: Harry F. Barnes, Special Judge.

text:
    Porter R. RODGERS Sr. v. STATE of Arkansas
    CR 76-156
    547 S.W. 2d 419
    Opinion delivered March 14, 1977
    (In Banc)

      Ed Bethume, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Harry F. Barnes, Special Judge.

On the night of September 25, 1974, Fern Rodgers was shot and killed at her home in Searcy. Approximately two weeks later Mrs. Rodgers’ husband, Porter R. Rodgers, Sr., the appellant herein, was charged in her death with capital felony murder. The appellant entered pleas of not guilty and not guilty by reason of insanity.

Both the deceased and the appellant were very prominent, longtime residents of White County. Dr. Rodgers was a seventy year old physician actively engaged in a profitable medical practice in Searcy. He was estranged from his wife and had lived in a local hotel for the five or six months preceding his wife’s death. The appellant had served on the State Racing Commission, was actively engaged in a farming enterprise, and was active in the breeding and showing of walking horses.

The State alleged that Peggy Hale, an employee and paramour of Dr. Rodgers, and the appellant had hired one Barry Kimbrell to “rob, rape, and kill” Fern Rodgers. The appellant was tried alone for his alleged part in this conspiracy. After a lengthy jury trial the appellant was convicted of first degree murder and sentenced to life imprisonment. The appellant now brings to this Court eight points on which he relies for reversal.

I.

Prior to being arrested and charged with his wife’s murder, the appellant signed what amounted to a confession, the truth of which he subsequently denied. The appellant here contends that the introduction into evidence of that signed confession violated appellant’s rights to counsel and to refrain from incriminating himself.

No question is raised in this appeal relative to the procedures followed by the trial court in determining the admissibility of the confession. Appellant’s only argument is that the conduct of the police in obtainihg the confession, considered in light of all the other circumstances, was such as to compel exclusion of the confession for the stated, reasons.

The facts and circumstances surrounding the confession will now be set forth in some detail. The so-called confession consisted of admissions by the appellant that he had, with the assistance of Peggy Hale, hired Barry Kimbrell to kill Fern Rodgers. During the course of the police investigation of this crime the appellant was interviewed some five or six times. The confession was the product of the last such interview. To establish the totality of the circumstances surrounding the confession, it is necessary to review that particular interview, as well as the two interviews immediately preceding it.

Peggy Hale was arrested in connection with Mrs. Rodgers’ murder at about noon on November 8. Shortly thereafter, the appellant appeared at the White County Courthouse and sought to arrange a bond for her release. Appellant was immediately informed by the police that he was a suspect in the murder of his wife. Appellant was given a Miranda warning and promptly signed a written waiver of those rights. Appellant had also been given Miranda warnings on two prior occasions. This conversation between the appellant and the officers was electronically recorded. It contained no statements which would tend to incriminate the appellant. During the course of the interview, the appellant told the officers that he wanted to talk to his lawyer before he made any definite statement relative to his wife’s death. The transcript of the interview reveals that one of the police officers told the appellant that he had, indeed, better spend some of his money on a good lawyer. The interview was terminated without further interrogation and without the appellant being arrested. The entire interview lasted approximately one hour.

The next police interview with the appellant occurred during the early morning hours of November 9. Prior to that interview the police investigators had obtained statements from both Hale and Kimbrell which implicated them, together with the appellant, in the murder of Mrs. Rodgers.

The appellant was asked by the police if he would agree to come to the prosecuting attorney’s office for the purpose of discussing some new developments in the case. The appellant agreed. A police car went to the appellant’s hotel and transported him to the prosecuting attorney’s office. This occurred at approximately 3:00 A. M. the morning of November 9.

Upon arriving, the appellant was informed by Officer W. A. Tudor that he was a suspect in the capital felony murder investigation of his wife’s death. The appellant was again informed of his rights, specifically that he had the right to remain silent and the right to have an attorney present during the interview. At 3:21 A. M. the appellant signed a written waiver of these rights. Dr. Rodgers was then confronted with statements of Hale and Kimbrell, which had been recorded electronically and transcribed. At the request of the appellant he was also permitted to personally confront Miss Hale, who confirmed to the appellant that she had made the statement to the police.

This second interview with the appellant was also recorded. The appellant made a tacit admission of his involvement in the murder, as well as a specific request for the assistance of an attorney.

I only admit that Peggy Hale has always been truthful with me and I do not deny that what she said in the tape recording was true but I want to consult with my attorney, Leon Catlett, before I make any further statements. ■

Miss Hale, who was also present, recalled the appellant stating to the officers that “. . . he would contact his lawyer and get back in touch with them. . .”

The second interview was terminated, again without the appellant being placed in custody or his freedom otherwise restricted. A police officer, James Lester, drove the appellant back to his hotel at approximately 4:45 A.M.

Lester testified that he did not attempt to interrogate the appellant during the trip to the hotel. However, Dr. Rodgers did, according to Lester, state that he had several things on his mind that he wanted to talk to Lester about, but that the appellant did not feel like talking then. Lester stated that he would be glad to talk to the appellant and they agreed to meet at noon that day in Room 124 of the Kings Inn Motel. That was the motel where the State Police personnel were staying while in Searcy and Room 124 was the room occupied by Lester.

Dr. Rodgers’ confession occurred during his next, or third, interview with the police. While there is substantial conflict between the appellant’s and the police version of this interview, several facts related to it are not in dispute. These facts, which are either admitted or uncontradicted, include the following. The appellant met Lester between 12:30 P.M. and 12:45 P.M. on November 9 in Room 124 at the Kings Inn Motel. While there the appellant ordered lunch from the motel room service, which he and Lester ate in the room. The appellant and Lester were alone in Room 124 most of the time. However, three other policemen and a motel waitress were in and out of the room during the afternoon for periods of a few minutes each. Lester and the appellant stayed in Room 124 until 2:45 or 3:00 P.M. They then drove together in Lester’s vehicle to the prosecuting attorney’s office. Since no one was in the office, Lester requested that another policeman, Doug Stevens, be present during the interview with the appellant. Stevens was present during the entire interview. At about 3:10 P. M. the appellant executed a written waiver of his Miranda rights. The appellant then apparently, although he denies any recollection of it, made a statement to Lester which was incorporated in the confession. The appellant then affixed his signature to each page of the confession. The interview was concluded at about 4:40 P.M., whereupon Lester immediately placed the appellant under arrest for the murder of Fern Rodgers.

The appellant’s version of the interview contains the following facts which are at odds with the police version. Officer Lester, not the appellant, initiated the interview. Lester first phoned the appellant at about 10:00 A.M. stating that he wanted to talk to the appellant. The appellant readily agreed, but Lester said he was busy then and would have to phone back later. Lester telephoned again about 11:00 A.M. and told the appellant to meet him at the appellant’s room in Noble’s Motel. The appellant again readily agreed. Lester phoned again a third time at about 11:45 A. M., and, according to the appellant, said, “We’ll meet at the motel.” Finally, the appellant testified that Lester called less than ten minutes later and told the appellant to meet him at Room 124 at the Kings Inn.

The appellant describes the interview or interrogation itself in the following terms:

I arrived at Room 124 of the Kings Inn at about 12:30 and Lester let me in. He said he meant business. He showed me his pistol and said, “I hope we don’t have to use this pistol but I can sure use it.” His face was red. I was afraid of the man and I was tired so I sat down on the bed. He told me, “We are going to bring this thing to a head today. ” There was no one else in the room but on occasion he would leave the room and go into the adjoining room and talk to someone. Once when he came out of the adjoining room I saw what looked like a whiskey bottle in his hand. I could tell he was mad and he showed me his pistol twice. Stevens and the other man came by the room and talked to Lester. I was in the room over two hours and was hungry so I ordered some food. Lester kept trying to get me to talk and I told him two or three times that I would have to talk with Leon Catlett, my lawyer. He said, “To hell with the damn lawyer. I am tired of hearing that.” Around 2:45 we left the Kings Inn. I asked Lester to let me take my car to the County Office Building, but he wouldn’t listen to me and told me to get in the car. On the way down to the building, I saw he was mad at me. I told him that I was going to have to have a lawyer before I could make any further statement. Along about that time I began to have one of my weak spells. I don’t remember anything else until something was said by Lester about signing. I remember distinctly he made me sign on the bottom and over on the side. So then the next thing I remember, I was walking to the jail. I deny what’s in the statement but it is my signature.

The record reveals the following testimony by Officers Lester and/or Stevens contradictory to the Rodgers’ version. After dropping the appellant at Noble’s Motel at about 4:45 A. M., Lester had no contact with the appellant until 12:30 P.M. At that time the appellant phoned Lester and stated, apparently referring to their 12:00 noon appointment, that he had been delayed and was just leaving to meet Lester. The appellant arrived at Room 124 a few minutes later. Lester and the appellant ate lunch in the room, at the suggestion of the appellant, and watched a football game on television. Lester was not drinking and the mood of the conversation was always cordial. Lester finally asked the appellant if he was ready to talk to him. The appellant said he was. Lester then asked that the appellant accompany him to the prosecuting attorney’s office for a formal interview. The appellant readily agreed. Lester did not interrogate the appellant, or even discuss the case, at any time at the motel or during the ride to the prosecuting attorney’s office.

When Lester and the appellant arrived at the prosecuting attorney’s office no one was there. Lester summoned Officer Doug Stevens to be present during the interview. Stevens remained with Lester and the appellant until the statement was completed. The appellant expressly confirmed to Stevens that he had been informed of his rights by Lester and had agreed to waive them.

The three men engaged in idle conversation for a few minutes before the appellant stated, “Let’s get on with the business.” Lester then asked the appellant to tell him what had happened from the beginning, whereupon the appellant related the circumstances of his wife’s murder. Lester transcribed this confession in longhand. At its conclusion the statement was given to the appellant, who appeared to read it in its entirety. Stevens then suggested that Lester read it aloud to the appellant. Lester did this and the appellant then signed the statement.

There was no electronic recordation of the conversation at the Kings Inn or the interview at the prosecuting attorney’s office. However, as stated, there were four other persons present in Room 124 with Lester and the appellant for various short periods of time. One of these, the motel waitress, was a disinterested witness. The appellant concedes that these witnesses’ testimony is without dispute or conflict relative to the following facts: Food was ordered to the room; there was no evidence that Lester was drinking; no ohe heard the Rodgers’ murder case even mentioned; no one heard or observed any indication that Lester threatened or otherwise abused the appellant.

There is also no evidence that Leon Catlett, or any other attorney, was actually employed by appellant to represent him relative to the police investigation of Mrs. Rodgers’ murder. It is undisputed that the appellant did not consult with any attorney during the period of November 8 and 9.

In summary, Dr. Rodgers testified that he was threatened, mistreated, and abused by Officer Lester and that he does not remember making the statements that went into his confession. Lester expressly denies this and claims that the appellant’s confession was completely voluntary. In addition, at all times the appellant was alert, responsive, and appeared to fully comprehend what was going on about him. Finally, all other evidence tending to support one of the above conflicting versions over the other is on the side of Officer Lester. In fact, we find not a shred of evidence in the record which tends to corroborate Dr. Rodgers’ testimony relative to the third interview and his confession.

At the Denno hearing below, both the State and the appellant introduced expert opinion evidence relative to the appellant’s mental capacity at the time of the events described above. Dr. Douglas Stevens, a clinical psychologist, testified for the appellant by stipulation that the appellant’s waiver of rights signed at 3:10 P. M. on November 9, “. . . Would have been the product of confusion, it would not have been the product of intelligence and understanding.” Likewise, Dr. James M. Sims testified that the appellant’s waiver, “. . . Would have been the product of confusion.”

A psychologist and a psychiatrist, Dr. John Althoff and Dr. Oscar Kozberg, also testified by stipulation for the State. Each gave the opposite opinion from that of the defense experts. The State’s witnesses stated that Dr. Rodgers’ waiver of his rights was “. . . the product of intelligence and understanding.”

We have reviewed the record relative to the confession according to the standard established in Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). There we held that the State had the burden of proving by a preponderance of the evidence each element essential to the admissibility of a confession. Further, we stated that this Court on appeal would review the totality of the circumstances surrounding the confession to determine whether the trial court’s decision on admissibility was clearly against the preponderance of the evidence. In the instant case, we find each of the following to be established by an overwhelming preponderance of the evidence. The confession was given freely and voluntarily. The appellant knew that he had the right to remain silent and that he had the right to counsel during questioning. The appellant also knew that by requesting counsel he could terminate the questioning. However, the appellant knowingly and intelligently waived his right to remain, silent and his right to counsel prior to making his confession. Therefore, the trial court did not err in admitting the appellant’s confession into evidence.

As stated, we have applied the standards set forth in Degler v. State, supra, in reviewing this confession and have held the confession to be admissible under those standards. However, we do not hold that Degler is necessarily the correct rule where, as here, the person making the confession was not in custody. Certainly many elements present in a custodial interrogation and confession are absent when the confession is the product of a voluntary interview with the police.

For instance, the appellant argues here that this confession is inadmissible under our rule in Pierce v. State, 248 Ark. 204, 451 S.W. 2d 219 1970). In other words, once Dr. Rodgers had stated an intention to consult an attorney, the appellant argues that the State was effectively barred from further interrogation until the consultation with an attorney had in fact taken place. We hold that is not the rule in a noncustodial interrogation.

Here, on two prior occasions police interviews were terminated as soon as Dr. Rodgers indicated a desire to consult an attorney. Thereafter, his freedom was not restricted in any manner and the police did not seek to again interview him for several hours. In short, the appellant, after indicating a desire to consult an attorney, was always given an adequate time in which to carry out that desire before he was again asked to submit to an interview. And further, before any such subsequent interview was commenced, Dr. Rodgers was again advised of his rights and willingly signed a written waiver of those rights. Under those circumstances we hold that Dr. Rodgers’ rights received more than adequate protection at the hands of the police.

The appellant’s testimony contained allegations of police misconduct which at first glance seem to raise questions related to a coerced confession. As stated above, we believe that the preponderance of all the evidence supports Policeman Lester’s version of that third interview. However, we would point out that Dr. Rodgers’ version does not, in fact, place the confession within the framework of the classic coerced confession cases. This is for the simple reason that Dr. Rodgers does not attribute his confession to the allegedly coercive behavior of Lester. Rather, the appellant simply denies any recollection of making the statement. In other words, this confession is not alleged to have been made because of fear of police mistreatment. Instead it is alleged that the confession was not the product of a conscious mind and was, therefore, involuntary. However, there is simply no evidence, other than the appellant’s testimony, to support this allegation. Indeed, all of the other evidence is to the effect that Dr. Rodgers was coherent, appeared to be alert, and seemed well aware of all that was going on about him before, during, and after his confession.

The expert psychological and psychiatric evidence is in the same category. To be sure, if the appellant did not know what he was doing when he waived his constitutional rights and confessed, the waiver would not be effective and the confession inadmissible. However, the most that can be said for the defense evidence on this point is that Dr. Rodgers was “confused”. That is not enough to overcome all of the other evidence, including contrary expert opinions, to the effect that the appellant’s waiver and his confession were voluntary acts of a conscious, intelligent mind.

II.

The appellant contends that the trial court erred by not granting a new trial because of newly discovered evidence consisting of a psychological report of Dr. Daniel Taub and the testimony of Dr. Taub. The appellant was sent to the Arkansas State Hospital for a mental examination and the results of that examination ultimately were introduced into evidence.

The evidence on the question of the appellant’s mental capacity consisted of expert testimony from both sides, plus the written report from the State Hospital required by Ark. Slat. Amo. §43-1301. The substance of the appellant’s evidence was that while he was legally responsible for his conduct, he suffered from diminished capacity under stress, both with respect to the ability to tell right from wrong and to knowingly and intelligently waive his constitutional rights. The State’s evidence was to the effect that the defendant was legally sane and that he was competent to understand and intelligently waive his rights.

A subpoena duces tecum for all records relevant to the appellant’s examination at the State Hospital was served on the State Hospital. In response, the State Hospital furnished its file on Dr. Rodgers. After the triai, it was discovered that the reports of Dr. Daniel Taub relative to his examination and tests of the appellant had been omitted from the State Hospital file. The appellant filed a motion for a new trial because of this newly discovered evidence.

A hearing was held on that motion at which Dr. Taub testified. The substance of Dr. Taub’s testimony is as follows. The appellant had organic brain syndrome which reduced his mental capacity, particularly when he was fatigued or under stress. The appellant’s condition was not different than that which would be expected in a person of his age. In fact, the appellant was better off than would be expected because of an above average I.Q. That is, the appellant was intellectually superior to the average seventy year old person. The appellant knew the difference between right and wrong. The appellant was not mentally defective. The appellant’s “level of functioning” at the time he was examined was the equivalent of an I.Q. of 105 to 110. The appellant’s organic brain syndrome was mild to moderate, and was certainly not severe.

The explanation of the missing State Hospital report was simply that Taub’s report was not considered to be part of the file at the time the subpoena was served. Dr. Taub conducted the initial psychological examination and testing of the appellant. Dr. Taub did not administer a complete battery of tests. However, Dr. Taub left his employment with the State in November of 1974 and went to work for the federal government. Dr. Oscar Kozberg was a staff psychiatrist at the State Hospital and was the State’s primary witness on this issue. Dr. Kozberg testified that when he first reviewed the appellant’s file, it was his opinion that Dr. Taub’s psychological testing was incomplete. At the time of his initial review, Dr. Kozberg was aware that a defense psychologist was expected to testify. Dr. Kozberg felt that a complete battery of tests should be done. Therefore, Dr. Kozberg removed the report of Dr. Taub and directed Dr. John G. Althoff, a staff psychologist, to perform a complete battery of tests on the defendant. This was done. Dr. Kozberg also stated his opinion that the test results obtained by Dr. Althoff were not inconsistent with the results of Dr. Taub’s tests. The trial court denied the appellant’s motion for a new trial without specifying the reasons therefor.

A preliminary question deserves mention, to-wit, that of suppression of relevant evidence by the prosecution. That is not an issue here because it is admitted that no one connected with the investigation or the prosecution of the appellant was ever aware of the existence of Dr. Taub or his report until after completion of the trial herein. The omission of that report was strictly on an internal decision of the State Hospital staff which was never revealed to the prosecution.

Hence, the issue now before the Court is whether this was newly discovered evidence which would entitle the defendant to a new trial. Assuming that the Taub report was newly discovered evidence, that is not enough. New evidence, in order to justify a new trial, must be such as to render a different result in such new trial “probable.” Gross v. State, 242 Ark. 142, 412 S.W. 2d 279 (1967).

That is not the case here. Dr. Taub’s test results and his opinions were merely cumulative and in no way inconsistent with the tests and opinions expressed by other evidence presented by the State at the trial. As such, we perceive no way that this evidence, had it been available to the defense at the time of the trial, would have been likely to affect the ultímate outcome of the trial. Even if we assume that appellant was not aware of the identity of all those who had examined and tested him, we do not know why a timely direct inquiry as to their identity, independent of the subpoena duces tecutn, would not have led to the informatipn ultimately discovered after trial. Cf. Townsend v. City of Helena, 244 Ark. 228, 424 S.W. 2d 856, cert. den. 393 U.S. 917, 89 S. Ct. 244, 21 L. Ed. 2d 203. In any event, on this little favored ground for new trial, the trial judge had a considerable latitude of discretion. Treat v. State, 253 Ark. 367, 486 S.W. 2d 16; Williams v. State, 252 Ark. 1289, 482 S.W. 2d 810; Cooper v. State, 246 Ark. 368, 438 S.W. 2d 681. We cannot say that it was abused.

III.

The appellant next contends that the trial court erred in admitting into evidence the State Hospital report on the ultimate issue of insanity. Here, the mandate of the statue is quite clear. Ark. Stat. Anno. § 43-1301 provides that:

“. . . A written report prepared by the physician or physicians employed by the State Hospital shall indicate separately the defendant’s mental condition during the period of the examination and his probable mental condition at the time of the alleged offense.”

The report which was admitted into evidence conformed to the requirement of the statute. The admissibility of such a report has been established by this Court in Nail v. State, 231 Ark. 70, 328 S.W. 2d 836 (1959). In Downs v. State, 231 Ark. 466, 330 S.W. 2d 281 (1959), this court addressed the issue of the right of confrontation. There we held, citing the Nail case, that the right to confront witnesses is not impaired unless the defendant is denied the right to question the doctors who examined him. Nail v. State, supra. Here, the appellant in fact did have an opportunity to question those who examined him. And the appellant was free to, and in fact did, present contradictory evidence and rebuttal witnesses on the questions of his sanity and mental capacity.

We, therefore, conclude that the appellant’s contention is without merit and the State Hospital report was properly admitted into evidence.

The appellant next contends that the trial court erred in denying him the right to have a daily copy of the trial proceedings. The appellant requested that he be furnished with the official court reporter’s copy of the daily proceedings. The court reporter stated that it would be impossible to comply with such a request and the trial court rightfully refused it. The appellant next requested that he be permitted to employ his own court reporter. This request was also refused by the trial court. The appellant asked what he could do to obtain this information. The trial court stated that the appellant could either have a stenographer take notes, those notes not to constitute an unofficial verbatim transcript, or that the appellant could use an electronic recorder to be operated by counsel for the appellant. The appellant’s counsel took advantage of neither alternative.

We need not here delineate the bounds of any right a criminal defendant might have to obtain a daily copy of the transcript of the proceedings. We have concluded that the trial court did not here abuse its discretion because the alternatives it provided appellant’s counsel were reasonable under the circumstances, and we are unable to say that appellant suffered any prejudice.

V.

The appellant contends that he should have been permitted to discover the personnel file of Policeman Lester because it contained information which would tend to impeach Lester’s credibility as a witness. It was alleged that the State Police had taken disciplinary action against Lester twice, once shortly before and one shortly after Lester obtained the appellant’s confession herein. It is undisputed that the disciplinary action was in another case and was totally unrelated to the Rodgers’ murder investigation. The trial court examined Lester’s personnel file in camera and determined that nothing therein was material to the Rodgers’ case. Accordingly, the trial court refused appellant’s request for discovery and also refused to seal Lester’s personnel file and make it a part of the record herein. The appellant contends that this was reversible error.

The record herein is clear that the appellant’s counsel was already aware of the facts surrounding Policeman Lester’s discipline by his employer. The trial court permitted the appellant to cross-examine Lester in detail about the facts surrounding his discipline. Lester admitted on cross-examination all aspects of the occurrence, including having given deceptive responses in a polygraph examination.

There is no contention in this appeal that Lester’s testimony on cross-examination was in any way inconsistent with the information contained in his personnel file. The appellant does not contend that the personnel file itself, or any part of it, was admissible in evidence. Rather, it is argued that the information it would have revealed would have been useful in cross-examining Lester. However, this information was already known to appellant’s counsel. Furthermore, it was, in fact, used by him in his cross-examination of Lester. The common law recognized no right of discovery in criminal cases. Shores v. U.S., 174 F. 2d 838, 11 ALR 2d 635 (8th Cir., 1949). The right to discovery in such cases is generally governed by statute. At the time of appellant’s trial there was such a statute in Arkansas. Ark. Stat. Ann. § 43-2011.2 et seq (Supp. 1975). This statute would not have required that appellant’s attorney be permitted to inspect Lester’s personnel file. There are valid policy reasons for maintaining confidentiality of such files. People v. Coleman, 75 Misc. 2d 1090, 349 N.Y.S. 2d 298 (1973). Still, the trial court has some discretion in the matter of discovery when impeaching matter is concerned. Shores v. U.S., supra; Graves v. State, 489 S.W. 2d 74 (Tenn. Cr. App. 1972). But, in the exercise of discretion the necessity for a defendant’s searching confidential matter must be weighed against the public policy of confidentiality of secrecy. People v. Coleman, 75 Misc. 2d 1090, supra; Commonwealth v. Dominico, 306 N.E. 2d 835 (Mass. App. 1973); U.S. v. lozia, 13 F.R.D. 335 (1952). Cf. Arnold v. State, 179 Ark. 1066, 20 S.W. 2d 189. This, the trial court may do by an in camera inspection of the material sought. See, U.S. v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 Commonwealth v. Dominico, supra; People v. Bottom, 76 Misc. 2d 525; 351 N.Y.S. 2d 328 (1974). U.S. v. Olin Mathieson Chemical Corporation, 36 F.R.D. 18 (1964). Since defense counsel was permitted a wide latitude in cross-examination and had drawn admissions from the witness which could be taken as damaging to his credibility, we are unable to say that the trial court erred to the prejudice of appellant. See Turner v. State, 258 Ark. 425, 527 S.W. 2d 580; State v. Miller, 35 Wis. 2d 454, 151 N.W. 2d 157 (1967).

VI.

The appellant contends that the trial court erred by admitting into evidence photographs of the deceased. The appellant had agreed to admit and/or stipulate all relevant facts shown by those photographs. It is argued that the appellant’s willingness to stipulate, coupled with the fact that the photographs were by their nature inflammatory, rendered these exhibits inadmissible.

The admissibility of photographs is a matter within the discretion of the trial court. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973). Lee v. State, 229 Ark. 354, 315 S.W. 2d 916 (1958). The photographs in question were color shots of the deceased’s remains as discovered at the crime scene. To be sure, the subject matter of the photographs would alone tend to justify their characterization as gory and, at least to some extent, inflammatory. However, the photographs were material, relevant and accurate. And in no way did they seek to exaggerate or even emphasize blood and gore.

In Perry v. State, supra, we noted that the inflammatory nature of a photograph would not alone render it inadmissible. The same thing is true of the opposing party’s willingness to admit or stipulate certain facts shown by the photograph; e.g., the fact, cause, and place of death. The test should always be whether any necessarily inflammatory tendency of a photograph is outweighed by its probative value. If a photograph sheds light on any issue; or if it assists witnesses to better describe a crime scene; or if it in some other way materially helps the jury to understand the testimofty; then its admissibility into evidence is within the sound discretion of the trial court. We find that these principles were applied here. Therefore, the trial court’s ruling on the admissibility of the photographs was not an abuse of its discretion.

VII.

The appellant argues that the prosecution knew in advance of jury selection and trial that its evidence would not support a capital felony murder conviction. The State, it is argued, used this charge to allow it to qualify a death penalty jury. The appellant was, of course, convicted of a lesser charge, murder in the first degree. The appellant contends that filing the more serious charge is reversible error unless there is evidence in the record which would have sustained a jury verdict of guilty to the charge of capital felony murder. There is no contention by the appellant that the death penalty jury was improperly qualified under the guidelines established in Witherspoon v. Illinois, 391 U.S. 510 (1968). The appellant merely argues that the jury so qualified would be prosecution oriented to the extent that it could not fairly pass on the issue of guilt or innocence. This argument is without merit.

The appellant’s argument is neither factually nor legally sound. In the first place, a thorough review of the record convinces us that there was evidence from which the jury could have concluded that the appellant was guilty of capital felony murder. In substance, there was evidence to the effect that it was intended that Kimbrell rob Mrs. Rodgers in addition to killing her. In any event, we do not accept as valid the proposition that a jury qualified to return a death penalty is necessarily prejudiced on the question of guilt or innocence. On this point we agree with the following statement of Mr. Justice Stewart in the Witherspoon case.

We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. Witherspoon v. Illinois, 391 U.S. 510 (1968).

VIII.

The appellant contends that the trial court erred in instructing the jury on the issues of confession and insanity. The trial court gave four instructions related to the jury’s consideration of the appellant’s confession. It gave five instructions related to insanity and reduced mental capacity. There is no need to further lengthen this opinion by repeating these instructions. We have reviewed each instruction individually, as well as reviewing the instructions on each issue collectively. We have concluded that the trial court’s instructions were correct statements of the applicable law which fully and completely instructed the jury on the issues in question. Further, we have reviewed the instructions offered by the appellant and refused by the trial court. We find that each of the instructions so refused was either repetitious, argumentative, or contained an incorrect statement of the law. Accordingly, we hold that no error was committed by the trial court in instructing the jury. We have reviewed other objections made in the trial court and find none which merit reversal or further discussion.

For the reasons stated above, the judgment of the lower court should be, and the same hereby is, affirmed.

Holt and Hickman, JJ., not participating.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    BORDEN, Inc. v. Sammy L. HUEY
    76-350
    547 S.W. 2d 760
    Opinion delivered March 21, 1977
    (Division I)

      Eichenbaum, Scott, Miller, Crockett & Darr, by: James E. Dan, Jr. and Leonard L. Scott, for appellant.

      Guy Jones, Jr., Guy H. Jones, Phil Stratton, and Casey Jones, for appellee.
   George Rose Smith, Justice.

In a sense this case is a sequel to Borden, Inc. v. Smith, 252 Ark. 295, 478 S.W. 2d 744 (1972). There Vogel’s, Inc., a subsidiary of the appellant Borden, Inc., inserted in its employment contracts a provision prohibiting former employees from competing with Borden for one year after the termination of their employment and within a territory comprising 63 of Arkansas’s 75 counties and parts of three neighboring states. We held the restrictions invalid, on the ground that the prohibited territory was unreasonably large.

After that decision, according to the testimony in this case, Vogel’s rewrote the non-competition clause to bring it down “into the smallest area we could to protect the integrity of our contract.” The revised contract retained the one-year limitation, but reduced the territorial restriction to the county seats of counties in which the employee had sold Borden’s products (frozen and unfrozen foods, primarily) during the last two years of his employment by Borden.

The plaintiff, Sammy L. Huey, worked as a salesman for Vogel’s from 1966 until 1969 and again from September, 1970, until he voluntarily left the company in June, 1975. He had signed an amended and substituted employment contract in December, 1974, containing the new restrictions. Huey, upon leaving Vogel’s, went into a competitive business as a salesman for Porter Foods. When he brought this suit against Borden to recover severance pay, about which there is no longer any dispute, Borden sought by counterclaim to enjoin Huey from violating the restrictions in his contract of employment and to recover damages for its breach. This appeal is from a decree finding the territorial restrictions to be valid but the one-year limitation to be unreasonably long.

We agree with the chancellor’s finding that the territorial restrictions are valid. Under the contract Huey was forbidden to engage in a competitive business in only four county seats, having these 1970 populations: Conway, 16,-772; Morrilton, 6,814; Clinton, 1,029; and Perryville, 815. Huey testified that he had understood the contract to refer only to the county seat of his residence, Conway; so he did not compete there after he left Borden. Thus the prohibition extended to three cities having a total population of less than one half of one percent of the State’s population of 1,923,295, or, if Conway be included, about 1.3 percent of the total. Huey worked in Pulaski County and elsewhere while he was temporarily enjoined from competing in the four specified county seats. Apparently he earned as much as he had been earning before he left Borden. We find the territorial restriction to be reasonable. In fact, counsel for Huey make no argument to the contrary.

The one-year limitation presents a closer question, but we think it too to be reasonable. Each case of this kind is to be determined upon its own facts. Miller v. Fairfield Bay, 247 Ark. 565, 446 S.W. 2d 660 (1969). Sam Vogel, Borden’s district manager, testified that the time limitation had previously been reduced from two years to one year, which he considered reasonable. It was co-ordinated with one-year promotions provided by suppliers. The preliminary injunction against Huey was not issued until nine months after he left Borden. Vogel testified that the company’s sales in Huey’s territory had been running about 1% behind the preceding year, but Huey’s competition caused that figure to drop to about 9% behind by the end of the year (Huey left in June) and to about 13% the next year. The consequent loss of profits was estimated at from $10,000 to $15,000. There was no comparable testimony in the two cases cited by the appellee: Orkin Exterminating Company v. Weaver, 257 Ark. 926, 521 S.W. 2d 69 (1975), and Rector-Phillips-Morse v. Vroman, 253 Ark. 750, 489 S.W. 2d 1, 61 A.L.R. 3d 391 (1973). To the contrary, in Orkin the former employee had obtained, a year after his discharge, only 18 out of Orkin’s 702 monthly customers. No comparable figures are mentioned in Rector.

The appellee argues that Borden’s restrictions were designed to shield Borden from the ordinary competition that may occur whenever any employee leaves a job. In the circumstances of this case that is hardly true. Vogel described the company’s vulnerability to competition from former employees who knew the company’s customers and their credit ratings. Many decisions in other states have recognized the importance of such “customer-contact” by employees. “The most important single asset of most businesses is their stock of customers. Protection of this asset against appropriation by an employee is recognized as a legitimate interest of the employer. A restrictive covenant, therefore, fulfills the first requirement on which its enforceability depends, if it is necessary to protect the employer against loss of his customers.” Annotation, 41 A.L.R. 2d 15, 71 (1955). The annotator goes on to point out that an employer is especially vulnerable when an employee, such as a route man, deals with customers away from the employer’s place of business and builds up personal relationships that bind the customers to himself instead of to the employer’s business. That reasoning applies to the case at bar, Huey having been an outside salesman for Borden.

The appellee also argues that his written contract with Borden recited that he was employed for 12 weeks, after which either party could terminate the relationship upon 14-days’ notice. Hence, it is said, Borden could hire a person for only 12 weeks and then, by discharging him, invoke the one-year restriction upon competition. Here that argument is academic. Huey had been working continuously for Borden for more than four years when the particular contract was signed. He was not discharged; he resigned. Vogel explained that the 12-week provision was meant for new employees and really shouldn’t have been in Huey’s contract. Moreover, a period of 12 weeks would presumably be sufficient for a route man to ingratiate himself with the company’s customers. Thus the 12-week limitation is not shown to be so unreasonable as to vitiate the contract.

Reversed and remanded.

We agree. Harris, C.J., and Byrd and Roy, JJ.


author: Conley Byrd, Justice.

text:
    MID-SOUTH PARTITIONS, Inc. et al v. William A. BRANDON, et ux
    76-359
    547 S.W. 2d 764
    Opinion delivered March 21, 1977
    (Division I)

      Coleman, Gantt, Ramsey & Cox, for appellants.

      Moses, McClellan, Arnold, Owen & McDermott, by: Wayne W. Owen, for appellees.
   Conley Byrd, Justice.

This is an ejectment action brought by appellees William A. Brandon and Betty J. Brandon against appellants Mid-South Partitions, Inc., Bruce and Marjorie Thalheimer and Charles Leon and Linda Smith to settle a boundary dispute. The jury found the issues in favor of appellees. For reversal, appellants contend that the trial court erred in refusing to submit to the jury their instruction on adverse possession.

Admittedly appellants did not affirmatively plead adverse possession. However, they contend that in an ejectment action one does not have to affirmatively plead adverse possession and cite as authority Floyd v. Ricks, 14 Ark. 286 (1853) to the effect that in ejectment under a general denial it is permissible for the defendant to show any title either freehold or possessory which will defeat the plaintiff’s title. In making this argument, the appellants overlook Ark. Stat. Ann. § 34-1408 (Repl. 1962) which now requires the defendant in an ejectment action to state the facts showing a prima facie title. As we construe that statute, it requires a defendant to affirmatively plead the defense of adverse possession. See Stolz v. Franklin, 258 Ark. 999, 531 S.W. 2d 1 (1975), and Bridgman v. Drilling, 218 Ark. 772, 238 S.W. 2d 645 (1951).

In the alternative, the appellants contend that the issue of adverse possession was placed before the court by the complaint of the plaintiff. This contention is disputed by the appellees, but we need not reach it because as we view the record the evidence was insufficient to warrant the giving of the instruction.

For the appellants to show adverse possession it was necessary for them to tack their possession to J. M. Mullins, a former owner. Mr. Mullins testified that he purchased the property in 1961 and that he later constructed a building on a portion thereof. When he purchased the property he had it surveyed and the survey stakes were placed close to a fence. Later when the Teamster’s Building was erected, the contractor doing the work placed some dirt on Mullin’s property and smoothed it out close to the fence. Nowhere does Mr. Mullins show that he openly, notoriously and adversely held the property up to the fence. Other witnesses testified that they found evidence of a fence along the disputed strip but nobody testified what kind of a fence was involved nor that it was recognized by any adjoining owner as the boundary.

Upon the record, we cannot find any substantial evidence to support appellants’ claim of adverse possession. Consequently, the trial court did not err in refusing their instruction.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Holt, JJ.


author: Frank Holt, Justice.

text:
    Lynn BUHR v. ARKANSAS STATE BOARD OF CHIROPRACTIC EXAMINERS
    76-352
    547 S.W. 2d 762
    Opinion delivered March 21, 1977
    (In Banc)

      Niblock & Odom, for appellant.

      Bill Clinton, Atty. Gen., by: Dave Greenbaum and Peggy O’Neal, Asst. Attys. Gen., for appellee.
   Frank Holt, Justice.

In a hearing before the Arkansas State Board of Chiropractic Examiners, appellant was found guilty of violating Ark. Stat. Ann. § 72-441 (a) (2), (6) and (8) (Supp. 1975), and his license to practice was suspended for a period of six months. The circuit court affirmed. For reversal appellant asserts that “Arkansas Statute Annotated § 72-419, setting forth the qualifications of the members of the Arkansas State Board of Chiropractic Examiners, is unconstitutional as it creates a Board which does not fairly represent the profession of chiropractics and suspension of a license by such a Board constitutes a denial of due process of law.”

The power and authority given a Board to exclude from practice an incompetent or unworthy person is a recognized power of the state. “The constitutionality of such laws, as a valid exercise of the police power, has often been sustained, and indeed rarely questioned.” State Medical Board v. McCary, 95 Ark. 511, 130 S.W. 544 (1910). Here the statute, in addition to certain residency and oath provisions, requires that each member of the Board be a member in good standing with the Arkansas Chiropractic Association, regularly licensed and practicing for at least five years and a graduate of a reputable school or college of chiropractic, with the added provision that no two members of the five member Board be graduates of the same school. The issue raised in appellant’s motion for dismissal and argued here is that the graduates of the Palmer College of Chiropractic (of which appellant is a graduate) are not given equal representation on the five member Board. It is insisted that since 77 (55.4%) of the 148 licensed chiropractors in Arkansas are Palmer College graduates, they are not equally represented on the Board.

The record reflects that one of the five member Board, which conducted the hearing, is a graduate of the Palmer College. The licensed chiropractors in the state are graduates of 11 different schools. The Board, created by the legislature, is the sole authority for matters of licensing and revocation of license, § 77-441 (a). Any infringement of appellant’s rights is preserved through the right of appeal from the Board’s findings to the circuit court. § 77-441 (b). We hold appellant has not demonstrated any bias or prejudice or a denial of due process of law based upon the assertion that the composition of the Board results in unequal treatment to him as a Palmer College graduate.

Appellant also argues that the makeup of the Board is not fairly representative of the entire profession (148 members) and, further, there is a possibility of pecuniary gain by the Board and other members of his profession as a result of the suspension of his license. It appears these issues were not raised in his motion to dismiss and are asserted for the first time on appeal. Consequently, we cannot consider them. Further, it appears that appellant is a member of the association and, therefore, is without standing to raise the issue that the Board is unrepresentative of the non-members (approximately one-fourth) of the profession.

Appellant next contends that § 72-441 (a) (2), (6) and (8) is unconstitutional because the terms “gross immorality” and “unprofessional conduct” are void for vagueness. We cannot agree. Proof was adduced that appellant and his family, accompanied by a fifteen year old babysitter, were in Little Rock for the annual Arkansas Chiropractic Association convention. The babysitter and her family were patients of his. She was sleeping in the same motel room with him and his family. After retiring one evening, appellant said he was awakened by the young girl’s apparent discomfort and he administered a needed chiropractic adjustment. According to her, however, appellant lay down in the bed with her and made certain sexual advances. The Board found that appellant attempted to engage in sexual intercourse with her without her consent.

The term “gross immorality” is commonly interpreted by courts as being equivalent to and coextensive with the term “moral turpitude.” Brown v. Hassig, 136 Kan. 384, 15 P. 2d 401 (1932); and 61 Am. Jur. 2d, Physicians, Surgeons and Other Healers § 60. The term “moral turpitude” has been held to be consitutional when used in a statute pertaining to the revocation of a physician’s license. State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W. 2d 83 (1935). The term “grossly immoral or unprofessional conduct” does not render a statute void for uncertainty since those terms are susceptible to a “common” understanding and “general opinion.” Alton v. Board of Medical Examiners, 13 Ariz. 354, 114 Pac. 962 (1911); see also Ballentine, Law Dictionary 2d (1948). Here we hold the terms “gross immorality” and “unprofessional conduct” are readily susceptible to a common understanding especially when applied to this factual situation by members of the profession itself. The statute here is reasonably necessary in the public interest and to assure competency in the profession.

Affirmed.


author: Elsijane T. Roy, Justice.

text:
    Marion O’MARY and Nell O’MARY v. Joe T. DUNN and LaVerne DUNN
    76-332
    547 S.W. 2d 758
    Opinion delivered March 21, 1977
    (Division II)

      William J. Wynne, of Crumpler, O’Connor & Wynne, for appellants.

      William I. Prewett, of Brown, Compton & Prewelt, Ltd., for appellees.
   Elsijane T. Roy, Justice.

The parties to this action owned as tenants in common a parcel of land 30’ x 71.62’, and their respective businesses were located adjacent to the South end of this parcel. Appellants petitioned the court, ^pursuant to Ark. Stat. Ann. § 34-1801 (Supp. 1975), requesting partition of the small tract according to their respective interests or, in the alternative, sale of the land and distribution of the proceeds if it were found the land was not susceptible to division in kind without prejudice to either party.

The court, after hearing testimony, accompanying counsel to the site and viewing the area, entered a judgment of partition and appointed three commissioners pursuant to Ark. Stat. Ann. § 34-1815 (Repl. 1962) to make a report to the court. The commissioners filed a complete and detailed report pursuant to statutory requirements finding the property to be divisible in kind “without prejudice or damage to the rights and claims of either of the litigants” and allotting the South half of the parcel to appellees and the North half to appellants.

Thereafter appellants filed objections alleging great prejudice would result to them since their portion was not contiguous to adjacent lands they owned and further because a prescriptive roadway ran across their half. The court overruled their objections and ordered execution of the deeds of partition. It is from this order that appeal is taken.

We note the court, accompanied by counsel, personally viewed and examined the land in question and the manner in which the building of each party was situated with respect to the adjacent property they owned. The court then appointed three commissioners, all approved by the litigants, who concluded that the property was capable of division without prejudice or damage to either interest. Although not bound by these findings, the court accepted them after concluding that the commissioners had made an equitable division.

The court in overruling appellants’ objections to the partition stated:

* * * The Court finds that there are no new matters contained in these pleadings. The existence of the roadway was known to both parties at the time of trial and was known to the Commissioners.
* * #
* * * If plaintiffs had pleaded and proved . . . that the lands were not divisible in kind, the Court could have ordered a sale without appointment of Commissioners to ascertain a fact which had already been adjudicated.
* * *

Appellees had a television antenna located on the partitioned property and a door from their establishment opening on to the South half allotted them. Appellants did not have anything of this nature on the property in question.

59 Am. Jur. 2d Partition § 117, p. 861 (1971), states inter alia:

The well-settled rule is that the action of commissioners in partition will not be set aside on the ground of unequal allotments except in extreme cases, as where the partition appears to have been made upon wrong principles, or where it is shown by very clear and decided preponderance of evidence that the partition is grossly unequal. * * *

Although differences of opinion might arise as to the division made by the commissioners, confirmed by the trial court, we find they were in a better position to make the determination than is this Court. On review of the record we cannot say the chancellor’s determination that no great prejudice resulted to either party is against the preponderance of the evidence.

Affirmed.

We agree. Harris, C.J., and Fogleman and Hickman, JJ-


author: Darrell Hickman, Justice.

text:
    The AETNA CASUALTY AND SURETY COMPANY v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY et al
    76-303
    547 S.W. 2d 757
    Opinion delivered March 21, 1977
    (In Banc)

      Hale, Fogleman & Rogers, for appellant.

      Wright, Lindsey & Jennings, for appellees.
   Darrell Hickman, Justice.

The issue in this case involves interpretation of a homeowners insurance policy.

The homeowner, James Waggener, was sued, in a separate case which is still pending, for negligently entrusting a minibike to a minor child who, while operating the bike on a neighborhood sidewalk, injured the minor child of Delores Cunningham. Cunningham sued Waggener and other parties, but the only allegation of negligence against Waggener is that he was wrong in permitting a minor child to use the minibike.

Waggener has an excess indemnity policy with the appellant, Aetna Casualty and Surety Company and a homeowners policy with American Manufacturers Mutual Insurance Company, the appellee. American Manufacturers has refused to defend Waggener in the lawsuit against him. Aetna brought this suit against American Manufacturers for a declaration that American Manufacturers is obligated to defend Waggener and to pay any judgment to the limits of their policy. The lower court held that American Manufacturers’ homeowner’s policy excluded this type of accident and Aetna brings this appeal.

The issue on appeal is interpretation of the American Manufacturers’ policy issued Waggener and primarily concerns a clause in the insurance policy which excludes liability for certain types of accidents.

The theory of Aetna’s lawsuit is that American Manufacturers’ policy has a broad coverage clause of insurance. The clause reads as follows:

This company agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence.

An “occurrence” is defined as an accident which would result in injury to a person or property. American Manufacturers admits that the coverage clause is broad but defends this lawsuit on the basis of an exclusionary clause in the policy. According to the clause th re is no coverage for an accident arising out of the ownership, maintenance, operation, use, loading or unloading of:

Any recreational motor vehicle owned by any insured, if the bodily injury or property damage occurs away from the residence premises; . . .

We agree with the trial court’s finding that American Manufacturers is not required to defend Waggener. The accident occurred off the premises and undoubtedly from the use of the minibike. Aetna’s argument that the “negligent entrustment”, rather than the “use” of the minibike, is the negligent act ignores the clear language of the exclusionary clause. LaBonte v. Federal Mutual Insurance Company, 159 Conn. 252, 268 A. 2d 663 (1970), Federal Insurance Company v. Forristall, Court of Civil Appeals of Texas, 401 S.W. 2d 285 (1966).

We are not unmindful that several other states have reached the opposite conclusion. See Lalomia v. Bankers & Shippers Insurance Company, 312 N.Y.S. 2d 1018 (1970), McDonald v. The Home Insurance Company, 97 N.J. Super, 501, 235 A. 2d 480 (1967), and Republic Vanguard Insurance Company v. Buehl, 295 Minn. 327, 204 N.W. 2d 426 (1973).

This vehicle accident, off the premises, is best covered by general liability insurance or motor vehicle insurance available for a premium that considers the primary risk involved.

Affirmed.

Fogleman, J., not participating.

Byrd, J., concurs.

George Rose Smith, J., dissents.


text:
    Mary H. JAY and Richard B. JAY v. Don PARKER and RANCHETTE HOMESITES, Inc.
    76-361
    547 S.W. 2d 765
    Opinion delivered March 21, 1977
    (Division II)

      Joe E. Purcell and Wm. R. Wilson, Jr., P.A., for appellants.

      Laser, Sharp, Haley, Toung & Boswell, P.A., for appellees.
   Darrell Hickman, Justice.

The issues in this case are the use of statements made by a party in a pre-trial deposition. The lower court refused to permit the appellants to use prior statements of a party during their case in chief, or in cross examination of the party making the statements.

The appellants, Mary Jay and her husband, Richard, sued Don Parker and Ranchette Homesites, Inc. for assault and battery. The Jays were the owners of a house trailer located in Ranchette Homesites in Saline County, Arkansas. Don Parker was the manager of Ranchette. There had been a problem regarding surface water in the trailer park and there had been a previous dispute, about the surface water, between the Jays and their neighbors, the Flemings. Mary Jay was attempting to change the flow of the water when Mr. Fleming called the manager, Don Parker. Parker approached Mrs. Jay, who had a pick in her hand. Mrs. Jay claims that Parker assaulted her and seriously injured her. Parker denied this and said that Mary Jay attacked him with a pick and brickbats and that he only defended himself. The only witnesses to the fracas were Mr. and Mrs. Fleming and they supported Don Parker’s version of the incident. The jury returned a verdict for Parker and Ranchette Homesites.

. The Jays allege on appeal that two questions and answers from Mr. Parker’s pre-trial deposition should have been admitted to the jury as evidence in their case in chief and the court should have permitted these questions and answers to be used to impeach Don Parker’s testimony.

Those questions are as follows:

Q. When Mr. Jay asked you why you attacked very brutally and beat up his wife, what was your answer?
A. 1 don’t remember.
Q. Could you have told him because she was on your property?
A. I could have.

The lawyers for the parties entered into a standard agreement at the time the deposition was taken and agreed not to object to the form of the questions. When the Jays attempted to introduce the two questions and their answers during presentation of their case in chief, the court excluded the evidence because the possible prejudice of the questions outweighed the evidentiary value of the answers. We do not disagree with the ruling of the trial court on this point. The first question does assume matters which are disputed, and the answers are evasive and not in the form of admissions. However, when Parker testified he was very positive in his memory. He was asked the question:

Q. Didn’t you tell him you attacked his wife because she was on Ranchette property?
A. No, sir, I did not.

At this point, attorney for the Jays attempted to ask Parker if he had not testified differently in his deposition. The court would not, again, permit the use of the questions and answers. We feel the trial court was wrong. The real issue before the jury was the credibility of the witnesses, and particularly the credibility of the two parties. Although the first question assumes certain facts in dispute, the answer is clearly evasive and is inconsistent with Parker’s testimony that he did not make a statement to Mr. Jay. See Wigmore on Evidence, Vol. 3, § 1037.

We feel the trial court should have perrñitted the use of the questions and answers during cross examination since credibility was a prime issue in the case and the testimony of a party was involved.

Therefore, we will reverse the decision and remand the case for a new trial with instructions to permit the use of the questions in cross examination, providing, of course, a proper foundation is laid.

Reversed and remanded.

We agree. Harris, C.J., and Fogleman and Roy, JJ.


author: PER CURIAM

text:
    Isaiah ALLEN v. STATE of Arkansas
    CR 77-57
    553 S.W. 2d 690
    April 11, 1977
   PER CURIAM

Petitioner was convicted of first degree rape in the Jefferson County Circuit Court. Petitioner presently alleges that due to retained counsel’s failure to perfect an appeal, petitioner should be granted a belated appeal.

From a review of trial counsel’s response to petitioner’s present motion, it is apparent that a notice of appeal was tendered; however, for some reason, it was not filed on or before the statutory deadline. The filing of a timely notice of appeal is a jurisdictional prerequisite to our review of an appeal. Accordingly, in view of the above findings, we conclude that petitioner’s request for belated appeal should be denied without prejudice to raising these allegations in a postconviction petition filed pursuant to Criminal Procedure Rule 37.

Motion denied.


author: John A. Fogleman, Justice.

text:
    Charles NEAL v. STATE of Arkansas
    CR 75-115
    548 S.W. 2d 135
    Opinion delivered March 28, 1977
    (In Banc)

      Raster & Lane, by: James F. Lane, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

The judgment sentencing appellant to death by electrocution was affirmed by us in Neal v. State, 259 Ark. 27, 531 S.W. 2d 17. Just as was the case in Collins v. State, 259 Ark. 8, 531 S.W. 2d 13, 261 Ark. (7 Mar. 77), 548 S.W. 2d 106, the Supreme Court of the United States vacated this judgment and remanded this case to us for reconsideration in the light of Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Woodson and Waxton v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 195, 548 S.W. 2d 106, and for additional reasons hereinafter stated, we adhere to the views expressed in Neal v. State, supra, 259 Ark. 27, and again affirm the judgment of the trial court.

Most of the contentions made and arguments advanced by the appellant on this reconsideration are identical to those made and advanced in Collins v. State, supra, 261 Ark. 195. Since these points were comprehensively treated in the opinion on reconsideration in that case, we will not again treat them here.

Appellant has conceded that the constitutional standards for the trial stage under Ark. Stat. Ann. § 41-4701 et seq (Supp. 1973), i.e., Act 438 of 1973, have been minimally, if not abundantly, met. In any event, we see no reason for any further discussion of the trial stage of capital felony murder prosecutions. It is the matter of appellate review on which appellant addresses us. Appellant does argue that there can be no meaningful appellate review of a death sentence in the absence of a mechanism, such as that provided by the Georgia statutes, through which the Georgia Supreme Court is provided in every case in which the death penalty is imposed with a report from the trial judge in the form of a questionnaire and an accumulation of the records of all capital cases in which sentence has been imposed after January 1, 1970, or such earlier date as the Georgia Supreme Court may deem appropriate. But appellant concedes that it was pointed out in Proffitt that the Florida statute has no such provisions. We find nothing in the language of any of the opinions in Proffitt, or in Gregg for that matter, to indicate that this mechanism is an essential safeguard against the arbitrary, capricious, wanton or freakish imposition of the death penalty. In Proffitt, the Stewart-Powell-Stevens plurality (which appellant mistakenly takes to be a majority) recognized the absence of this kind of mechanism, but [citing State v. Dixon, 283 S. 2d 1 (Fla., 1973), cert. den. 416 U.S. 943, 94 S. Ct. 1950, 40 L. Ed. 2d 295, also cited by us in Collins v. Slate, supra, 259 Ark. 8], found meaningful appellate review in the Florida Supreme Court’s undertaking to review a case in which a defendant is sentenced to die in the light of other decisions to determine whether the punishment was too great and taking its function to be to “guarantee that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case.” Even the Stewart plurality found that the Florida capital-sentencing procedures seek to assure that the death penalty will not be imposed in an arbitrary or capricious manner, and, the appellate review system, to minimize any risk to the contrary. It pointed out that the decisions of the sentencing authority were reviewed, on appeal, to ensure that they are consistent with other sentences imposed in similar circumstances.

The exemplification of the statement by the Stewart plurality that the Florida Supreme Court, had, in effect, adopted the type of proportionality review mandated by the Georgia statute was found in Alford v. State, 307 S. 2d 433 (Fla., 1975), cert. den. 428 U.S. 912, 96 S. Ct. 3227, 49 L. Ed. 2d 1221 (1976) and Alvord v. State, 322 S. 2d 533 (Fla., 1975), cert. den. 428 U.S. 923, 96 S. Ct. 3234, 49 L. Ed. 2d 1226 (1976). A careful reading of these cases shows a total absence of the mechanism which appellant deems necessary to meaningful appellate review. In those cases, the only comparisons made were related to circumstances prevailing in death penalty cases previously reviewed by the Florida court. Any thought that the United States Supreme Court, or even the Stewart plurality, would say that the Georgia mechanism is an essential constitutional safeguard is quickly dispelled by examination of the examples cited in the plurality opinion. In both Alford and Alvord the Florida Supreme Court merely compared the factual background of the case being reviewed with facts disclosed in their opinions in recent cases in which the death penalty had been imposed. The Stewart plurality also found that the Texas system of prompt judicial review in a court with statewide jurisdiction provided a means to promote the evenhanded, rational and consistent imposition of death sentences under law and served to insure that sentences of death would not be wantonly or freakishly imposed. Jurek v. Texas, supra. Yet, the Texas system is not in any wise comparable to the Georgia system insofar as the mechanics emphasized by appellant are concerned. We find no merit in appellant’s argument on this point.

The next argument is that no meaningful appellate review is possible because the jury’s findings on aggravating and mitigating circumstances are mere “checkmark” selections of conclusions stated in statutory language without any information as to the manner in which the decision was reached. We find no great difficulty in this approach to the jury’s findings. In our original opinion, we rejected the argument that the statutorily described aggravating and mitigating circumstances were unconstitutionally vague. Neal v. State, supra, 259 Ark. 27. We are unable to find anything in the Woodson-Roberts-Gregg-Proffitt-Jurek quintuplet offspring of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, to cause us to change our views in this respect. To the contrary, we find support for our holding, after comparing the enumerated circumstances in our statute with those of the Georgia statute. While recognizing that guiding standards for the sentencing authority could fail for vagueness, the Stewart plurality in Gregg said: ^

*** While such standards are by necessity somewhat general, they do provide guidance to the sentencing authority and thereby reduce the likelihood that it will impose a sentence that fairly can be called capricious or arbitrary. Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.
In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentending authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.
*** No longer can a Georgia jury do as Furman’s jury did: reach a finding of the defendant’s guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury’s attention is directed to the specific circumstances of the crime: Was it committed in the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way or in a manner that endangered.the lives of many persons? In addition, the jury’s attention is focused on the characteristics .of the person who committed the crime: Does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment (e.g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime). As a result, while some jury discretion still exists, “the discretion to be exercised is controlled by clear and objective standards so as to produce nqndiscriminatory application.” Coley v. State, 231 Ga. 829, 834, 204 S.E. 2d 612, 615.

That plurality found that the Georgia standards, as construed by the Georgia Supreme Court, were sufficiently precise that the Georgia capital sentencing system would not violate the Eighth and Fourteenth Amendments to the United States Constitution. The. White-Burger-Rehnquist concurrence seemed to have no particular problem with the assertion that the Georgia standards were too vague. It also appears to us that the standards set out in our statute are as definite as the Florida standards which seem to have been found adequate in Proffitt to meet Furman requirements. In Proffitt, the Stewart plurality said:

While these questions and decisions may be hard, they require no more line-drawing than is commonly required of a fact finder in a lawsuit. For example, juries have traditionally evaluated the validity of defenses such as insanity or reduced capacity, both of which involve the same considerations as some of the above-mentioned mitigating circumstances. While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.
The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.

In Jfurek, both the Stewart plurality and the White concurrence upheld the Texas system which is without any statutory enumeration of aggravating circumstances or statutory mention of mitigating circumstances.

We have had little occasion to construe particular standards, because of the generality of the attack on them, but we still feel that the language is sufficiently specific. In this case, the jury found only one statutory aggravating circumstance, which appears to us to be very specifically defined. It appears to us that it will at least be as easy to review the record to see if there is sufficient evidentiary support for a jury’s findings on these particularized circumstances as it is when a jury’s general finding of guilt is questioned.

We adhere to the views expressed in our original opinion. There was certainly substantial evidence to support the one aggravating circumstance found to exist, i.e., that the murder was committed for pecuniary gain, being done in the perpetration of a robbery, out of which Neal said he netted $100. There was also sufficient evidentiary support, as we previously pointed out, for the jury’s failure to find, as a mitigating circumstance, that appellant had no capacity for understanding the wrongfulness of his conduct or that he was mentally impaired or emotionally disturbed at the time of the offense.

We did not specifically mention, on the first appeal, the argument that there was no substantial evidence on which the jury could find that the youth of the defendant at the time of the commission of the capital felony was non-existent as a mitigating circumstance, but some mention is again made of his age in the briefs on this reconsideration. The evidence on which appellant relied was not his chronological age. Instead, he relied on IQ tests made when he was six, nine and fourteen years of age and the opinion of a psychologist, who made the tests, that his maximum educational attainment would be at the sixth grade level, and that, at age fourteen, he was reading at the third grade level. It must be remembered that more than five years had passed since this last evaluation was made, and that the jury not only observed Neal, but heard a statement made by him in which he sought to shift the blame for the killing to his companion. The jury also heard testimony about the plotting of the crime and the preliminary steps to divert police attention at the time of the robbery from the place to be robbed.

When the ordinary meaning of the word “youth” is considered, it is equated with juvenility and adolescence; it seems to reach its outer limits at maturity. See Webster’s New International Dictionary, Second Edition; Webster’s Third New International Dictionary; Rodale’s, The Synonym Finder (Special Deluxe Edition); Roget’s Pocket Thesaurus. It appears that appellant’s date of birth was given as April 23, 1955 in his statement to the police officers. When he was fourteen, he had given a slightly different date. His accomplice testified that when the two became acquainted, Neal said that he was twenty or twenty-one. The offense was committed on December 1, 1974, when appellant was at least nineteen years and seven months of age. At the time of the offense, Neal was old enough to vote in all elections. Amendment 23, Constitution of the United States. He could make a valid will. Ark. Stat. Ann. § 60-401 (Repl. 1971). He could not rescind a contract without making restitution. Ark. Stat. Ann. § 68-1601 (Repl. 1957); Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W. 2d 532. Although there are purposes for which Neal would not be considered to have reached full majority at the time of his trial, those pointed out above are sufficient to indicate that a jury could be justified in finding that Neal had passed the state of adolescence and juvenility. We would not be justified in saying, as appellant had urged, that the jury arbitrarily ignored uncontradicted evidence on this point.

There was also a sound basis for finding that appellant was not suffering from a mental disease or defect which impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. A medical doctor, who was at the time of trial a student in advanced psychiatry and who had evaluated Neal in 1971 at the Juvenile Reception and Classification Center on the Benton State Hospital Grounds was the witness who gave the diagnosis of nonpsychotic organic brain syndrome with behavioral reaction and associated mental retardation. He arrived at this diagnosis by use of an electroencephalogram which he read as moderately abnormal. Although Neal had been given an IQ examination at the time, the results were not disclosed. This testimony was not substantiated by that of the examining neuropsychiatrist at the Arkansas State Hospital, to which Neal was committed for examination after the crime. He administered an electroencephalogram and found it to be within normal limits. We do not consider the evaluations by a psychologist when Neal was fourteen years old and younger to have any great weight. The last one did show a learning capacity at a sixth grade level. There was testimony from which the jury was justified in believing that the robbery was carefully planned and timed, after the robbers had watched the station at intervals over the period of a week from a service station directly across the street. We could not say that there was error in the finding on this mitigating circumstance.

As in Collins v. State, supra, 261 Ark. 195, 548 S.W. 2d 106 (1977), we have some difficulty in finding a basis for comparison of this case with others in which the death penalty has been imposed, because there are no recent cases. As in Collins, we can say that we are not aware of any case in which this court has reduced a death penalty where there wrre no more mitigating circumstances than there are here. This robbery was calmly and deliberately planned and executed by Neal and his companion. The appellant and his accomplice first drove around breaking windows in several stores in order to set off burglar alarms, so the police would be diverted to answer these alarms in another area. The jury would have been justified in the belief that Neal was the executioner and that Neal fired the first, last and most of the other shots into the body of the sole attendant at the service station where the robbery was carried out. The victim was first shot when he was on the floor in a bay in the service station after he had been bound at the wrists and ankles by Neal. Seven shots were fired into his body and each of the wounds was potentially lethal. A witness testified that Neal had told him that he shot the man seven times. Both .22 caliber and .38 caliber bullets were recovered from the victim’s body. There was evidence tending to show that Neal had possession of both .22 and .38 caliber weapons during the robbery and that he had obtained the .38 caliber weapon for use in the robbery. The accomplice testified that it was Neal who went into the station and finally dispatched the helpless attendant, when the two robbers drove back to check on the situation at the service, station and saw the attendant using the telephone.

We certainly cannot say that the sentence resulted from passion or prejudice, that the jury’s findings as to aggravating and mitigating circumstances and their weight were without sufficient evidentiary support; that there was any error in the sentencing procedure; or that the imposition of the death penalty was arbitrary, capricious or wanton. The evidence supported a finding of guilt of the degree of homicide charged. This murder was as vicious and brutal as that which took place in Collins. Neal’s attorney, in arguing the case to the jury, sought first to convince the jury that the accomplice was the actual killer, and then, that Neal should not suffer the death penalty. Still, he could only describe the killing as a brutal, merciless murder. The evidence showed a deliberate intention to minimize the possibility of identification by elimination of the victim of the robbery. We would not be justified in classifying the imposition of the death penalty in this case as freakish. We would not be justified in reducing the degree of the crime or the punishment. We hold that the imposition of the death penalty in this case did not violate the Eighth and Fourteenth Amendments.

We reinstate the judgment, and it is affirmed.

George Rose Smith, Holt and Hickman, JJ., dissent only for the reasons stated in their dissents filed in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977).

       For convenience, hereinafter called the Stewart plurality.


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    CITY OF LITTLE ROCK v. ARKANSAS LOUISIANA GAS COMPANY
    76-342
    548 S.W. 2d 133
    Opinion delivered March 28, 1977
    (Division I)

      Joseph C. Kemp, City Atty., and Benita Terry, Asst. City Atty., for appellant.

      Charles W. Baker, of Baker & Probst, P.A., for appellee.
   Frank Holt, Justice.

This appeal presents the issue whether the appellant city or the appellee Arkla must pay for the cost of moving appellee’s main pipeline which was necessitated by a street improvement project initiated by the appellant. The chancellor held that the city should pay Arkla SI 5,000 for the costs it incurred by the relocation. Appellant first contends the chancellor erred in finding that the city annexed the “road subject to Arkla’s pre-existing right-of-way easement.” Therefore, appellant argues, Arkla is not entitled to any damages. We cannot agree.

As shown by the stipulation, the appellee had a right-of-way easement in the road before its 1961 annexation by the city. Arkla had a main pipe line under the pavement of the county road. Arkla had a right, pursuant to a franchise from the city, “to locate its facilities in the City’s street rights-of-way.” The city derived an annual franchise tax from Arkla ($472,028 in 1974, $400,439 in 1975). Clearly, subsequent to the annexation, the easement right was continued by virtue of the city wide franchise granted to Arkla and the taxes collected by the city for that privilege. “There is no question but what a public utility owns a property right in its franchise for which it is entitled to compensation in eminent domain proceedings in the same manner as when other property rights are taken.” Ark. State Highway Comm. v. Ark. Power & Light Co., 231 Ark. 307, 330 S.W. 2d 77 (1950). Here, appellee has a compensable property right.

Neither can we agree that the chancello»' erred in finding that appellee was ousted from its easement To secure funds for the needed improvements, the city applied to the Federal Highway Administration and an agreement was reached by which the city would pay 30% and the federal agency 70% of the costs. It was stipulated that Arkla was permitted to place a new main line underneath the pavement of the street with “stub connections” from the new main line to either or both sides of the right-of-way to serve customers without the necessity for cutting the pavement. However, Arkla relocated its line from underneath to the outside of the pavement and within the right-of-way easement. Arkla justifies its relocation and claim for costs on the basis of the stipulation that “Among other requirements, CITY was required by the Federal Highway Administration to guarantee that all routine maintenance on manholes be confined to the hours of 8:00 p.m. to 6:00 a.m. and that no permits for cutting the pavement for the installation of service connections be allowed for a period of five years after the completion of the project. ARKLA placed its new line outside of the pavement because its regular and routine business requires that it be able to tap its line to make new services and to maintain and protect the safety of its gas mains.....The area of this street improvement is a rapidly developing part of CITY and ARKLA is legally bound to provide service to residents of CITY which would necessarily involve adding service lines off of the gas main that is in Geyer Springs Road. CITY has no prohibition against cutting the pavement of its streets in order to maintain ARKLA’s system or to add new customers, other than prohibitions arising out of agreements with the Federal Highway Administration such as set out above.”

When a public utility is ousted from its occupancy of that portion of the street or easement in which the utility has acquired a property right, it cannot be forced to move or relocate without just compensation for its costs. Ark. State. Highway Comm. v. Ark. Power & Light Co., supra; and Ark. State Highway Comm. v. Ark. Power & Light Co., 235 Ark. 277, 359 S.W. 2d 441 (1962). Here, as indicated by the stipulation, Arkla’s maintenance on its man holes was restricted to certain hours. For a period of five years after the completion of the improvement, Arkla was prohibited from cutting the pavement to install service connections. It was necessary for Arkla to place its new main pipeline outside the pavement because the nature of its business required the tapping of its line for new services, maintenance and the safety of its gas mains. We agree with the chancellor that, in the circumstances, there was, in effect, an ouster rather than a mere relocation and the city is required to pay for the SI5,000 costs.

Since we hold that the chancellor was correct in finding there was an ouster and not a mere relocation, we deem it unnecessary to disucss appellant’s contentions for reversal that the court erred in finding that the federal agency was the moving force and not the city in the project expense and the court erred in finding that if Arkla paid the relocation costs, it would result in discriminatory rates to its rural customers.

Affirmed.

We agree: Harris, C.Í., and George Rose Smith and Byrd, JJ.