text:
    Willie Mae HARRIS v. STATE of Arkansas
    CR 86-54
    726 S.W.2d 267
    Supreme Court of Arkansas
    Opinion delivered March 23, 1987

      Louis F. Mathis, for appellant.

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

Willie Mae Harris was convicted of first degree murder in the death of her husband, Clyde Harris, and sentenced to life imprisonment. Harris argues two points on appeal, which we find meritless.

The deceased was found lying face down in bed with the covers pulled over him. He was. killed with one shot from a .25 caliber automatic pistol. There was a bullet hole through the bed covers and powder burns around the hole. There were no powder burns on the deceased. The gun was found next to the body. Harris gave a statement to the police, stating the shooting was accidental.

Harris first argues there was insufficient evidence that she killed her husband with premeditation and deliberation, requisites for first degree murder. Premeditation and deliberation need not exist for any particular length of time. Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). They can be inferred from the circumstances of the case, “such as the character of the weapon used, the manner in which it was used, the nature, extent and location of the wounds inflicted, the conduct of the accused and the like.” Mason v. State, 285 Ark. 479, 688 S.W.2d 299 (1985); Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986).

Harris did not deny that she shot her husband; instead, she argues she had no intent to shoot him. She claims the gun accidentally discharged. She said that her husband acted insane. Every night he would go through a transformation — his facial features would change, he would say and do strange things, and he would threaten to kill her. On January 30, 1985, Harris testified she and her husband went to bed about 1:30 a.m. He accused her of giving him gonorrhea and attempted to have anal sex with her, but she refused. He then started calling her names and slung her around. Harris reached in her purse, which was on the floor beside the bed, and pulled out a loaded .25 caliber automatic pistol. She said she kept the gun beside the bed because Clyde’s threats had frightened her, and he kept two loaded rifles in the corner of the bedroom and a loaded pistol under the mattress. She said she knelt over Clyde, who was lying down, hit him with the gun, and the gun fired.

Harris’ story was contradicted by the state’s evidence. There was evidence that the gun did not discharge next to the deceased’s skin. Dr. Lee Beamer, from the state crime lab, testified the entrance wound was to the right of the breast bone, and the bullet passed through several vital organs. The path of the bullet was straight and not deflected. It traveled backward and downward from the deceased’s right to his left. In order for the bullet to follow this path, the location of the gun would have been above and in front of the deceased and to his right. Also, there was evidence that the gun would not accidentally discharge. A firearms examiner for the state crime lab testified that jarring would not cause the weapon to discharge. He hit the gun with a mallet and it did not accidentally discharge. There were no signs of violence found in the bedroom.

Harris could not explain how she hit her husband, only that the gun was somewhere in her palm; she did not believe her finger was on the trigger. She did not know where she hit him or how many times. There were no bruises or abrasions on the body. Harris stated first that she was in fear of her life, and she kept the gun beside her bed because of her fear. Later she stated she was not in fear of her life. She was angry at the time she pulled the gun out of her purse. Harris also contradicted herself about the reason she and her husband reconciled. They were separated and reconciled about 18 days prior to the shooting. In her statement to the police, Harris stated the couple decided to get back together; however, she stated at trial she went back to Clyde because he threatened suicide.

The jury has the duty of weighing the evidence. Hendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (1986). It may accept or reject any part of a witness’ testimony, and we are bound by the jury’s conclusion on a witness’ credibility. Burris v. State, 291 Ark. 157, 722 S.W.2d 858 (1987). It is obvious that the jury did not believe Harris’ testimony, and there is substantial evidence to support the conviction for first degree murder.

Harris next argues the trial court erred by not instructing the jury on the lesser offense of negligent homicide. The jury was instructed on first and second degree murder and manslaughter. We have repeatedly held there is no error in failing to give an instruction on one lesser offense if instructions on other lesser offenses are given, and the jury returns a verdict for the greater offense. Sherron v. State, 285 Ark. 8, 684 S.W.2d 247 (1985).

All other objections made during the trial were examined pursuant to Rule 11 (f), Rules of the Supreme Court, and we find no error.

Affirmed.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Randolph J. GROVER v. STATE of Arkansas
    CR 86-192
    726 S.W.2d 268
    Supreme Court of Arkansas
    Opinion delivered March 23, 1987

      Tim R. Morris, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

On August 8,1986, the trial court denied appellant’s petition for Rule 37 relief. For his appeal the appellant contends: (1) that trial counsel was ineffective; (2) that the trial court erred in failing to determine the factual basis for his guilty plea and (3) that the guilty plea was not knowingly and intelligently entered. We find no prejudicial error and affirm.

An amended information charging the appellant with aggravated robbery, attempted rape, kidnapping, and burglary was filed on September 9, 1983. Public Defender Don Huffman was appointed to defend the charges. During the time he represented the appellant the trial attorney was handling about 260 felony defense cases annually. The defense counsel visited the appellant 16 times prior to the plea and an associate visited the appellant three additional times.

Counsel requested a psychiatric evaluation of the appellant and the court granted this request. No mental disease or defect defense was found. A motion to suppress the defendant’s 30 page statement and other evidence was filed. Trial counsel tried to get the charges of attempted rape and kidnapping dismissed. He succeeded in preventing the state from videotaping the victim’s deposition.

The defense counsel explained to appellant that the victim’s testimony alone could convict him of any or all of the charges. He also explained the minimum and maximum penalties. The maximum sentence the appellant could have received at a jury trial would have been life plus 70 years. The lowest possible sentence for all charges would have been 22 years. The defense counsel was made aware that the victim and the appellant were acquainted with each other and that she had made a positive identification of the appellant as the person who committed the crimes.

After the plea and sentence the appellant and his trial counsel learned that two policemen had entered his residence without having a valid warrant or consent to search. Entry was by permission of the landlord. There is no evidence that anything was photographed, examined or seized during entry. Other officers subsequently searched the premises with the consent of appellant’s roommate. A consent to search form was signed by the appellant which authorized the officers to search his car.

The trial court conducted a thorough and complete hearing on the Rule 37 petition. The court’s findings of fact and conclusions of law are complete and supported by the record. In this case there was full compliance with the requirements and intent of A.R.Cr.P. Rule 37.3.

First we consider the argument that defense counsel was ineffective. From the facts cited above it is abundantly clear that although the initial search was undiscovered, defense counsel did a commendable job. Appellant furnished details of the crime and all other information that a competent defense counsel would need to intelligently defend or plead his client. Counsel hypothetically placed his client in the trial judge’s chair and as a member of the jury. After counsel presented known evidence to the appellant, the plea was entered. Such actions by counsel appear to be a good tactic for defense to employ.

Appellant has the heavy burden of showing that his trial counsel was ineffective. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). The appellant has failed to show that his counsel was ineffective pursuant to the first prong of the Strickland test. We have been cited to no action or inaction by trial counsel which remotely resembles ineffectiveness.

We now turn our attention to the matter of two officers entering the appellant’s motel room with the consent of the landlord. A landlord does not have the right to consent to a search of his tenant’s house or apartment. Chapman v. United States, 365 U.S. 610 (1961). There is no evidence that this illegal entry resulted in, or in any manner contributed to, the subsequent searches and arrest. One of the officers who made the illegal entry testified at the Rule 37 hearing that they were only looking for the appellant and paid no attention to anything else. This same officer testified that a deputy prosecutor told him not to reveal the surreptitious entry. The prosecutor denied making this statement at the Rule 37 hearing. Although it has no bearing on the outcome of this case, either the officer or deputy made a grievous mistake.

Based upon his testimony at the Rule 3 7 hearing, it does not appear that counsel would probably have proceeded any differently had he known of the prior entry. The most that he might have done would have been to request a suppression hearing before entry of the plea. The results probably would have been the same. There was no prejudice shown by the wrongful intrusion of the two officers. Had such entry been the basis of a subsequent search warrant or arrest, the results might have been different.

The appellant’s arguments of illegal arrest and search and seizure violations are matters which would have been proper for consideration at trial or on direct appeal. However, appellant waived such arguments when he entered a guilty plea. Zoller v. State, 282 Ark. 380, 669 S.W.2d 434 (1984).

We next address the court’s failure to make a factual determination as required by A.R.Cr.P. Rule 24. At a Rule 37 hearing such facts may be proven to have existed at the time of the guilty plea. Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978). Since the factual basis was established at his Rule 37 hearing, the appellant has not been prejudiced.

The third point for reversal concerns the allegation that the state failed to provide exculpatory evidence. This argument is based upon the unauthorized and undisclosed entry into the appellant’s residence by the two officers without a warrant or consent. There is no question that the prosecution must, upon timely request, provide any exculpatory evidence to the accused. Brady v. Maryland, 373 U.S. 83 (1963). However, we find nothing exculpatory about the illegal entry of the officers since they gained no evidence or information by such unlawful act.

At the hearing on the Rule 37 petition, the trial counsel could not say with certainty that even with hindsight he would have handled the case any differently. We are not unmindful of the holding in Kimmelman v. Morrison, 106 S.Ct. 2571 (1986), that a failure to make a timely motion to suppress may result in a finding that trial counsel was ineffective. However, the illegal entry did not produce anything, inculpatory or exculpatory. We do not mean to imply that courts condone such surreptitious activity. We do not.

The appellant has failed to show by clear and convincing evidence that he suffered prejudice as a result of any action by defense counsel. The appellant must meet this burden in order to obtain a new trial. Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984). Any failure by the trial court to obtain a factual basis for the guilty plea has been cured by the appellant’s testimony at the hearing. Finally, as stated earlier, we cannot find evidence that the state failed to provide exculpatory evidence.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Neema GARST, M.D. and Steve GARST, M.D. v. Gina CULLUM
    86-209
    726 S.W.2d 271
    Supreme Court of Arkansas
    Opinion delivered March 23, 1987

      Barrett, Wheatley, Smith & Deacon, by: J. Sky Tapp and Paul D. McNeill, for appellants.

      Stripling & Morgan, by: M. Edward Morgan and Dan Stripling, for appellee.
   Robert H. Dudley, Justice.

Appellants, Neema Garst and Steve Garst, defendants below, are medical doctors who operate a family clinic in Mountain View and are on the staff of the Van Burén County Hospital in Clinton. On January 12, 1985, appellee, Gina Cullum, a 19 year old college student, had an inflammation on her left breast and went to appellant Neema Garst for treatment. Neema Garst examined the inflamed area, withdrew pus for bacteriological examination, and admitted appellee to the Van Burén County Hospital where appellee was placed on intravenous antibiotics. Appellee’s condition worsened. Appellee contends that she had no notice of any proposed surgery until she had a discussion with the anesthesiologist and nurses on the night of January 14. One of the nurses brought her a surgical consent form authorizing an incision and drainage with a possible biopsy. At first, appellee would not sign the form, but later signed it because her pain was unbearable. She contends that no one explained the form to her before she signed it. On January 15, appellant Steve Garst performed surgery removing two tissue sections from appellee’s left breast. One section was 9 centimeters by 8.5 centimeters by 3 centimeters; the other section was 3 centimeters by 2.5 centimeters by 1.8 centimeters. The tissue was benign, and the pathological diagnosis was chronic mastitis. The operation left appellee’s left breast appearing higher than the right, significantly smaller, scarred, discolored, and the nipple turned in a different direction from the one on her right breast. Appellee instigated her action against both appellants alleging negligence in the treatment and negligence in the manner in which her consent was obtained. The jury found both doctors negligent and awarded $100,000.00 to appellee. We affirm.

During cross-examination, appellee’s expert medical witness, Dr. Tahir, admitted that his surgical privileges at the Van Burén County Hospital had been restricted but then added that the restriction had been rescinded. Appellants sought to attack Dr. Tahir’s testimony by having Dr. Jose Abiseid and Jerry Dollison testify that Dr. Tahir’s full privileges had not been restored. The trial court refused to allow the appellants to attack the witness’s testimony on this collateral issue by extrinsic evidence. The trial court ruled correctly.

The Arkansas Rules of Evidence are silent on the general subject of impeachment by contradiction. Certain areas of impeachment are dealt with explicitly: Rule 608 and 609 cover impeachment by evidence of character and criminal conviction, but that type of impeachment is not before us in this case; Rule 610 prohibits impeachment by religious belief, which is not before us; and Rule 613 concerns evidence of prior inconsistent statements, which is not before us.

In order to distinguish general impeachment by contradiction from those specific types of impeachment dealt with in the Rules, we use McCormick’s example:

Statements are elicited from Witness One, who has testified to a material story of a contract, crime, or conveyance, to the effect that at the time he witnessed these matters the day was windy and cold and he the witness was wearing his green sweater. Let us suppose these latter statements about the day and the sweater to be “disproved.” This may happen in several ways. Witness One on direct or cross-examination may acknowledge that he was in error. Judicial notice may be taken that at the time and place it could not have been cold and windy, e.g., in Tucson in July. But most commonly disproof or “contradiction” is accomplished by calling Witness Two to testify to the contrary, i.e., that the day was warm and Witness One was in his shirt sleeves.

C. McCormick, Evidence, § 47 (1954).

Since the Arkansas Rules of Evidence do not provide a rule on impeachment by contradiction, we must look to our common law. We have consistently held that a witness could not be impeached by extrinsic evidence on collateral matters brought out in cross-examination. In Powell v. State, 260 Ark. 381, 540 S.W.2d 1 (1976), we stated:

In making the contentions that they were entitled to impeach the credibility of Joe Morgan’s testimony on collateral matters appellants recognize that we have ruled to the contrary in Spence v. State, 184 Ark. 139, 40 S.W.2d 986 (1931), and in Swaim v. State, 257 Ark. 166, 514 S.W.2d 706 (1974), but suggest that those authorities should be overruled. We decline to overrule those authorities which are based upon Ark. Stat. Ann. § 28-707 (Repl. 1962). Without the restriction on collateral matters a simple trial could be carried on for years.

In Howell v. State, 141 Ark. 487, 217 S.W. 457 (1920), we wrote:

The general rule is that when a witness is cross-examined on a matter collateral to the issue, his answer cannot be subsequently contradicted by the party putting the question; but this limitation only applies to answers in the cross-examination. It does not affect the answers to the examination in chief.

Under our settled law, the trial judge ruled correctly in excluding the extraneous contradictory evidence.

Judge Weinstein and Professor Berger, in Weinstein’s Evidence ¶ 607 [05] at 607-64 (1985), write that historically trial judges have been required to apply the “collateral” rule without discretion — that is, just as in the case of prior inconsistent statements, extrinsic evidence was not admissible to show a specific contradiction on a matter classified as collateral. Our cases fit into this category. However, Weinstein, Wigmore, and McCormick all contend that this standard of no discretion is inadequate and should be modified to give the trial judge some discretion to admit extrinsic evidence after a Rule 403 weighing. See Weinstein’s Evidence, id.; J. Wigmore, 3A Evidence § 1003 at 659-660 (Chadbourn rev. 1978); C. McCormick, Evidence § 47 (1954).

We need not decide whether we will change our standard, because, in this case, even under a standard giving some discretion, we would not find an abuse of that discretion. Dr. Tahir admitted that his privileges had been restricted. His credibility as a medical expert was put in question at that point. Whether those restrictions were subsequently rescinded is not so probative on the issue of the witness’s credibility that we would reverse the trial court. Even under Wigmore’s proposed standard, contradictions by extraneous evidence must be judiciously used because such evidence does distract from the main issues, may consume a good deal of time, and may be more prejudicial than probative.

In their reply brief appellants argue for the first time that the “good standing” of Dr. Tahir was not a collateral issue, but rather a direct issue because of Ark. Stat. Ann. § 34-2614(A)(1) and (2) (Supp. 1985). The argument was not raised at the trial level, and we do not reverse a case on an issue not raised below. However, because we desire to clarify the matter, we address it. Ark. Stat. Ann. § 34-2614 (Supp. 1985) addresses the burden of proof in medical malpractice proceedings. Subsections (A)(1) and (A)(2) of that statute provide that a plaintiff must prove that the defendant failed to act in accordance with the degree of skill ordinarily used by doctors in good standing in the local area. That does not mean, however, that the standing of plaintiff s medical expert is a direct, rather than collateral, issue in a medical malpractice case.

Appellants’ next argument is that a directed verdict should have been granted to Dr. Neema Garst on the issue of lack of informed consent. The argument is without merit. There was substantial evidence by which the jury could have found that (1) appellant Neema Garst did not discuss the proposed surgery with appellee, (2) the consent form should have referred to an excisional biopsy, lumpectomy, or partial mastectomy, rather than incision and drain, and, therefore was an improper consent, and (3) the improper consent violated the standard ordinarily used by doctors in good standing in the locality, or in one similar, in a nonemergency situation.

Appellants’ next contention is that there was no substantial evidence by which appellee proved that she would not have undergone the surgery had she known the risks involved, and, accordingly, directed verdicts should have been granted in favor of both doctors on the issue of lack of informed consent. Ark. Stat. Ann. § 34-2614(B) (Supp. 1985) provides in the pertinent part:

(B) Without limiting the applicability of paragraph (A) of this Section, where the plaintiff claims that a medical care provider failed to supply adequate information to obtain the informed consent of the injured person:
(1) The plaintiff shall have the burden of proving that the treatment, procedure or surgery was performed in other than an emergency situation and that the medical care provider did not supply that type of information regarding the treatment, procedure or surgery as would customarily have been given to a patient in the position of the injured person or other persons authorized to give consent for such a patient by other medical care providers with similar training and experience at the time of the treatment, procedure or surgery in the locality in which the medical care provider practices or in a similar locality.
(2) In determining whether the plaintiff has satisfied the requirements of paragraph (B)(1) of this Section, the following matters shall also be considered as material issues:
(a) Whether a person of ordinary intelligence and awareness in a position similar to that of the injured person or persons giving consent on his behalf could reasonably be expected to know of the risks or hazards inherent in such treatment, procedure or surgery.
(b) Whether the injured party or person giving consent on his behalf knew of the risks or hazard inherent in such treatment, procedure or surgery.
(c) Whether the injured party would have undergone the treatment, procedure or surgery regardless of the risk involved or whether he did not wish to be informed thereofj.J-,
(d) Whether it was reasonable for the medical care provider to limit disclosure of information because such disclosure could be expected to adversely and substantially affect the injured person’s condition.

(Emphasis added.)

We do not address the issue of whether Subsections (B)(2)(a), (b), (c), and (d) each must be separately proven on direct evidence, or whether they are simply considered as material matters because, in either event, when the evidence is viewed in the light most favorable to the appellee, there was substantial evidence from the testimony of appellee and Nurse Tomlinson that appellee would not have undergone the procedure had she been fully informed that the procedure might involve the removal of such a large amount of tissue from her breast.

The appellants contend that the trial court erred in allowing the expert medical witness to respond to hypothetical questions because the hypotheticals ignored some of the facts in evidence. Under A.R.E. Rule 705, if counsel chooses, the underlying facts or data may be introduced and then an expert, who has no first hand knowledge of the material facts, can offer an opinion based upon the data in evidence through the use of hypothetical questions.

Objections to hypothetical questions must be specific. Payne v. Thurston, 148 Ark. 456, 230 S.W. 561 (1921). Thus, if the objection is that the question assumes some fact which is not in evidence, counsel must call the trial court’s attention to the specific fact not in evidence. Payne v. Thurston, id. If the objection is that a hypothetical question does not assume all material facts in evidence, the objection must supply the omitted data which the objector considers essential to the fair opinion.

In this case the appellants made only one specific objection, and that was to the fourth hypothetical. In it, the fact that antibiotic therapy had been attempted was omitted. We decline to reverse because of that omission of fact. In New Empire Insurance Co. v. Taylor, 235 Ark. 758, 362 S.W.2d 4 (1962), we addressed the same issue. There, a physician was asked a hypothetical question. An objection was made on the ground that the question did not include a required fact. We said:

The question was objected to by appellant on the ground that the interrogatory did not include the fact that Taylor had previously had eye trouble. When the objection was overruled, Roy answered that he had an opinion; it was entirely possible that the loss of sight could have been caused by the bug flying into Taylor’s right eye. There was no error in permitting the hypothetical question. In Missouri-Pacific R.R. Co. v. Hampton, 195 Ark. 335, 112 S.W.2d 428, we said:
Appellants next contend that the court erred in permitting Dr. McGill to testify to the hypothetical question that in his opinion the death of deceased was caused by the injury. The appellants’ attorney objected to the question and the court asked him on what ground. He stated: ‘On the ground that he hasn’t given the statement that the man never claimed to be injured or given any history of the injury to the doctors who treated him or made any complaint of that kind at all.’ ***, [I]f appellants’ counsel thought there were any facts omitted from the question which were essential to forming a conclusion, his remedy is to put those additional facts before the witness on cross-examination.
See, also, Shaver v. Parson Feed & Farm Supply, Inc., 230 Ark. 357, 322 S.W.2d 690

(Emphasis added.)

In their next point of appeal the appellants contend that the trial court erred in allowing a psychologist to testify about the difference in size of appellee’s breasts, the scars, discoloration and angle of the nipple on the left breast. The argument can quickly be dismissed because (1) appellants invited the testimony and (2) the testimony was within the competence of a lay person. It was not necessary for a medical doctor to testify to those facts.

Appellants next argue that the trial court erred in allowing two nurses to testify regarding the standard of care. This argument is also without merit. The nurses did not testify as to the applicable standard of care; nor did they give their opinion as to whether appellants violated that standard. According to appellee’s testimony, neither appellant discussed the consent form with her. Instead, the discussion was with a nurse. Therefore, it was entirely proper for the court to allow the nurse to testify about the consent form and the discussion concerning it. It was also proper for the trial court to allow testimony from the nurses regarding their observations in the operating room.

Finally, appellants argue that the award was excessive. The award neither shocks our conscience nor shows passion or prejudice on the part of the jury.

Affirmed.


author:
Steele Hays, Justice.
      John I. Purtle, Justice,

text:
    Samuel Davis DUNCAN v. STATE of Arkansas
    CR 85-228
    726 S.W.2d 653
    Supreme Court of Arkansas
    Opinion delivered March 23, 1987

      Achor & Rosenzweig, by: Jeff Rosenzweig, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

While investigating a disturbance on March 4, 1985, Pine Bluff police officer John Fallis was shot and killed. The next day Samuel Davis Duncan was arrested and charged with the murder of Officer Fallis. Duncan was found guilty of capital felony murder and sentenced to death by lethal injection. He raises numerous points on appeal, two of which require reversal.

The Confession

Duncan insists his confession should have been suppressed. The testimony is sharply disputed — Duncan maintains he was physically abused by the interrogating officers and they deny such mistreatment, while conceding some verbal abuse. Duncan claims he was struck in the stomach by one of the officers with such force that he urinated on himself, that he was denied access to a lawyer or a telephone and was repeatedly threatened.

Some of the principles by which we are guided in attempting to resolve these conflicts are: the burden is on the state to show the statement was made voluntarily, freely, and knowingly, without hope of reward or fear of punishment [Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979)]; when reviewing the admissibility of a confession on appeal, we make an independent determination of the voluntariness of the confession based on the totality of the circumstances, and the trial court’s decision will not be reversed unless it is clearly against the preponderance of the evidence [Stone v. State, 290 Ark. 204 (1986)]; Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984); a confession based on threats of harm is inadmissible [Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982)]; conflicts in the testimony are for the trial court to resolve as it is in a superior position to determine the credibility of the witnesses [Stone v. State, supra.]

A chronology of the less disputed events surrounding Duncan’s confession begins at about noon on the day after the shooting. Duncan was arrested at his residence in Grady, Arkansas and taken to the Pine Bluff police station. Shortly thereafter and prior to any interrogation, the prosecuting attorney, Wayne Matthews, filed a felony murder information against Duncan. In mid-afternoon the police began their interrogation of Duncan. Present during this interview were two Pine Bluff police officers, the prosecuting attorney, and a deputy prosecuting attorney. No careful inquiry into Duncan’s reading and comprehension proficiency was made. While Duncan testified he dropped out of school at the eleventh grade, a psychologist testified at the suppression hearing that he read at a third grade level and had an IQ of 70 which he classified as being mildly retarded.

Duncan’s rights were read to him and after he was told he had a right to have an attorney present before making any statement, he asked, “Do ya’ll appoint lawyers?” The officer did not answer the question directly but continued reading the Miranda rights form.

There is no evidence in the record of any rights waiver form being signed, nor was Duncan asked at any time whether in addition to understanding his rights he also agreed to waive them. Duncan did sign the rights form, misspelling his name'in the process (D-U-N-A-N).

The officers proceeded with the interrogation of Duncan for approximately two and one-half hours, failing to get anything but exculpatory information from him. He was taken to his cell and kept there until late Friday night when he was returned to an interrogation room. He was not allowed to make any phone calls during this three and a half day period. Late Friday night he was again interrogated and at this time gave incriminating information, admitting he had shot the officer.

The next day, Saturday, Duncan was allowed to see his girlfriend, also in custody, for a brief period, but was allowed no other visitors or phone calls. On Sunday, the officers asked appellant to give his confession again, and this time it was videotaped. The court found both the Friday and Sunday confession admissible, but only the Sunday confession was introduced at trial.

While Duncan makes a number of objections with regard to the confessions that are not supported by the record, there are two points which warrant reversal — the lack of an effective waiver of rights and failure to bring appellant before a magistrate for a prompt first appearance pursuant to A.R.Cr.P. Rule 8.1.

Unnecessary Delay

Rule 8.1 states simply:

An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.

There is no guidance from the rule or the Commentary as to what constitutes an “unnecessary delay” or what effect a violation of the rule will have on evidence obtained during such a delay. Nor have our cases necessitated establishing guidelines on these issues. See, Notes, Richardson v. State: A.R.Cr.P. Rule 8.1, A Rule in Need of a Standard, 38 Ark. L. Rev. 842 (1985).

Federal cases are governed by the Omnibus Crime Control and Safe Streets Act of 1968,18 U.S.C. A. §3501, which provides that a voluntary confession will not be inadmissible solely because of delay in bringing a person before a magistrate “if such confession was made or given by such person within six hours immediately following his arrest or other detention.” Similarly, the National Advisory Commission on Criminal Justice, has recommended a maximum time limit of six hours, Nat. Adv. Comm, on Crim. Justice, Corrections, § 4.5, (1973) and the Model Code of Pre-Arraignment Procedure, § 130.2 (1975) allows the accused to be held for two hours and under certain circumstances an additional three hours for a total period not to exceed five hours. While most states have avoided a categorical time limit, some have not, and there is a consistent concern when confessions are obtained after an accused is held beyond a twenty-four hour period. See 28 A.L.R. 4th 1121, Delay in Arraignment; Am. Jur. 2d Evidence § 547 (Supp. 1985) (and cases cited therein). The Pennsylvania Supreme Court, pursuant to its supervisory power, adopted a six hour limit and noted that in none of its many cases had a delay of six hours or more been found to be a necessary delay. Commonwealth v. Davenport, 370 A.2d 301 (S.Ct. Pa. 1977).

We will not here decide whether a specific time limit should be applied, as it is clear the delay of three and one-half days was unnecessary. There is no evidence in the record to suggest a reason for the delay in taking the defendant before a judicial officer in accordance with Rule 8.1, nor does the state offer any explanation in its brief. In fact, the record shows the delay was purposeful and that the prosecutor made a deliberate decision to hold Duncan in detention and ignore the prompt appearance requirement. We find no justification for the delay in complying with Rule 8.1.

Effect of an Unnecessary Delay

The other question to be dealt with is — where there has been an unnecessary delay under Rule 8.1, what impact does it have on evidence obtained during the interval. In resolving the issue we explore the reasons behind the prompt appearance requirement, originally developed by the U.S. Supreme Court and referred to as the McNabb-Mallory rule. See, LaFave, supra, § 6.3(a). LaFave notes that of greatest significance is the notion that the rule is “intimately related to the problem of eliminating the third degree since the use of coercion to obtain confessions most frequently occurs while the accused is being held in violation of prompt appearance statutes.” Id. at 455. LaFave continues quoting another commentator:

Since “the use of third-degree tactics is . . . difficult to prove because there is always the word of the police against the word of the accused; and the prestige of police testimony usually carries the day,” the safeguards upon which the traditional confessions rules rest have aptly been called “illusory.” The main thrust of the McNabb-Mallory rule . . . is to bypass conflicts over the nature of the secret interrogation and to minimize both the “temptation” and the “opportunity” to obtain coerced confessions. Id. at 455, citing, Y. Kamisar, Police Interrogation and Confessions, (1980).

It has been recognized that in addition to the purpose of guarding against the coercive influence of custodial interrogation, the rule insures that the accused is placed in early contact with a judicial officer so that protections covered by preliminary arraignment are afforded without delay, that the right to counsel may be clearly explained and implemented upon the accused’s request and that the accused is protected from being held incommunicado for protracted periods of time. Commonwealth v. Davenport, supra; People v. Heintze, 614 P.2d 367 (1980); State v. Benbo, __ Mont __, 570 P.2d 894 (1977); Model Code of Pre-arraignment Procedure § 150.2 Commentary at 388 (1975).

With these considerations in mind, the Supreme Court in McNabb v. United States, 318 U.S. 332 (1943) held that statements taken during a delay prior to a first appearance should be excluded. The Court found the conviction

cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law. Congress has not explicitly forbidden the use of evidence so procured. But to permit such evidence to be made the basis of a conviction in the federal courts would stultify the policy which Congress has enacted into law.

See also, Kamisar, supra at 9-13. Generally, exclusion of the confession has continued to be the result of a violation of the prompt appearance rule. See 28 A.L.R. 4th 1121, supra; LaFave, supra, § 6.3.

The significant question respecting the exclusion of these statements is whether there should be automatic exclusion or whether there should be a further consideration of prejudice or causal connection. We have not addressed this point directly, but have suggested there should not be a per se exclusion, that it should depend on a causal relationship between the delay and the statement. Richardson, 283 Ark. 91, 678 S.W.2d 772 (1984). (Evidence taken prior to the delay was “not tainted by what came afterward.”) The causal requirement appears to be the majority rule and as we are in agreement, we affirm the position taken in Richardson, supra. See 28 A.L.R. 4th 1121, supra.

The state urges the confession was voluntary under the totality of the circumstances, but we do not regard that approach as appropriate in seeking a reasonable and fair resolution of the application of this rule. As we have said, assurance of voluntariness is not the only concern. Of equal importance is the mechanism of the first appearance that guarantees that the accused’s constitutional rights will be protected and implemented. “Indeed, [the rights afforded under Rule 8.1] are basic and fundamental rights which our state and federal constitutions secure to every arrestee.” Bolden v. State, 262 Ark. 718, 561 S. W.2d 281 (1978). Furthermore, if exclusion under the rule rests on a voluntariness standard, we are again faced with a swearing-match the rule was designed to avoid. As was stated well in State v. Benbo, supra:

Under [the voluntariness standard] the statutory requirement of an initial appearance without unnecessary delay after an arrest is practically meaningless. Only when a defendant can affirmatively show statements, admissions, or confessions attributed to him were either not made at all, or were involuntarily made, would the failure to provide him with a prompt initial appearance be taken into account. This would put an almost impossible burden on a defendant. Furthermore, there would be no incentive for arresting officers to conform their procedures to statutory requirements.

As opposed to a voluntariness standard, we think the sounder approach is found in the three-part test used in Pennsylvania: 1) the delay must be unnecessary; 2) the evidence must be prejudicial; 3) the evidence must be reasonably related to the delay. Commonwealth v. Davenport, supra; People v. Heintze, supra; State v. Benbo, supra; see generally, 28 A.L.R. 4th 1121, supra, § 4, § 5.

Here it is evident the delay was unnecessary and the incriminating statements were unquestionably prejudicial. We also find the statements were causally related to the delay. We would not require that the delay be the sole cause of the confession, for this would revive the problems found in applying a voluntary standard. See also, Commonwealth v. Barilak, 460 Pa. 449, 333 A.2d 859 (1975). It is sufficient if it reasonably appears the delay contributed to obtaining the confession. Here, when Duncan was first questioned for two and a half hours, he gave nothing but exculpatory statements. It was only after three and a half days of incommunicado detention that he incriminated himself. We conclude the statements were reasonably related to the delay, in violation of the rule. See Commonwealth v. Davenport, supra; State v. Benbo, supra.

Absence of Waiver

While the confession must be excluded on the basis of the Rule 8 violation, the lack of an effective waiver of counsel is also significant.

Fifth amendment Miranda rights can be impliedly waived by conduct, depending on the facts of the case. If the rights are explained and the accused, having understood those rights, proceeds to give inculpatory statements, an argument can be made for waiver. LaFave, supra, § 6.9, p. 530-31. We have recognized such a waiver in Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). The complicating factor here is when the information was filed Duncan’s sixth amendment right to counsel attached, and this occurred prior to any interrogation. LaFave, supra, § 6.4, p. 466, Brewer v. Williams, 430 U.S. 387 (1977); Loomis v. State, 261 Ark. 803 (1977). LaFave states:

The [Brewer v. Williams] court declared the ‘right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’

See also, Michigan v. Jackson, _ U.S. _ (No. 84-1531, decided April 1, 1986); Kirby v. Illinois, 406 U.S. 682 (1972).

The state concedes Duncan’s sixth amendment right to counsel had attached but argues there was an implied waiver. The right to counsel under the sixth amendment can be waived, Brewer v. Williams, supra, however there is no settled agreement as to what constitutes an effective sixth amendment waiver of. counsel. It was noted in State v. Wyer, 320 S.E.2d 92 (W.Va. 1982), that the United States Supreme Court had not yet indicated whether a waiver of Miranda rights would effectively waive sixth amendment right to counsel, although Wyer quotes language in several Supreme Court cases pointedly suggesting that a higher standard is required for waiver of the sixth amendment right to counsel. Wyer also notes that jurisdictions range from finding an express Miranda waiver sufficient [State v. Burbine, 451 A.2d 22 (R.I. 1982)], to the requirement that once the sixth amendment right has attached “a valid waiver ... to have counsel present during post-indictment interrogation must be preceded by a federal judicial officer’s explanation of the content and significance of this right.” United States v. Mohair, 624 F.2d 1140 (2nd Cir. 1980).

Here there was no express or written waiver, and if Duncan’s confession is to be upheld it must be on the basis of an implied waiver of his Miranda rights. We do not find a sufficient waiver of the sixth amendment right to counsel in this case. In Loomis, supra, we dealt with a post-indictment custodial interrogation. We recognized that sixth amendment right to counsel had attached and required the state to show the defendant intentionally relinquished his right to counsel and did so deliberately and voluntarily. Johnson v. Zerbst, 304 U.S. 458 (1938). We found the waiver in Loomis effective. Loomis had signed an express waiver of his right to counsel which included the statement in boldface type, “I DO NOT WANT A LAWYER AT THIS TIME.” Additionally, there were specific statements by the defendant that clearly demonstrated he was waiving his right to counsel and that he was fully aware of the consequences.

In contrast, Duncan was barely literate and marginally retarded. He was not given a waiver form to sign nor was he asked whether he waived his rights; he was kept incommunicado for three and a half days, and it was only at the end of that time that he gave an inculpatory statement. There was no showing of a deliberate and intentional relinquishment of his rights, or that he had a clear understanding of what those rights were.

Issues on Remand

II

The remaining points for reversal are discussed for purposes of remand.

Disqualification of the Prosecuting Attorney

Duncan argues that the prosecutor, Wayne Matthews, and members of his staff should have been disqualified and a special prosecutor appointed. While Duncan disclaims any inference of unethical conduct by Matthews, he urges that his active participation in the interrogation, and the possibility of his being called as a witness by the state or the defense, encroaches on the rule that an attorney shall not serve as both an advocate and a witness in the same case. The trial court refused to order disqualification, but did rule that Matthews could not be called by the state at trial. Matthews did testify at the suppression hearing and was called by the defense to testify in the penalty phase of the trial on unrelated issues.

We do not agree with appellant that the office of the prosecuting attorney should have been disqualified per se. See Ford v. State, 4 Ark. App. 135, 628 S.W.2d 340 (1982). We do agree that when a prosecutor undertakes an active role in the investigation of a crime to the extent that he becomes potentially a material witness for either the state or the defense he can no longer serve as an advocate for the state in that case. Enzor v. State, 262 Ark. 545, 599 S.W.2d 148 (1977); Bowling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979). The developments at this trial illustrate the necessity of such a rule: the prosecutor in Duncan’s trial not only testified at the suppression hearing in support of interrogation procedures but in argument to the jury he described the events during Duncan’s confinement and expressed his opinion as to a crucial element of the case. We quote:

[Duncan] stated that he was in isolation and these surreptitious or secret meetings with Mr. Cook. Nicole Smith, his girlfriend, visited him twice. They were allowed to visit each other Friday when he gave his statement. They were allowed to visit Sunday when he gave his statement. So he saw the only relative that we know of he had, outside of the people of Grady, two of whom are witnesses against him. And they were allowed to visit. He wasn’t shut off and isolated. (T. 1628-T. 1629).

In so doing, the prosecutor effectively became a witness for the state and underwrote his own credibility. A prosecutor should never cast himself in the role of a prosecutor and a witness and it was reversible error to do so.

Other Homicides as Aggravating Circumstances

Duncan maintains it was error to permit the prosecuting attorney to use evidence of two homicides in Washington as aggravating circumstances under Ark. Stat. Ann. § 41-1303(3)(Repl. 1977). Duncan had announced in open court that he would waive extradition to Washington to be tried on charges pending against him for the murders of Barbara Currier and William Hartley. The prosecutor refused to relinquish custody of Duncan and the trial court declined to order it. Duncan argues that he was thereby deprived of the opportunity to vindicate himself of those charges so that they could not be used against him. He contends the statute is unconstitutional on its face or at least as applied.

We need not settle the issue, admittedly a troubling one where the defendant’s guilt is still undetermined, because appellant’s brief tells us parenthetically that Duncan is now in Washington awaiting trial on the pending charges.

Peremptory Challenges

Duncan exhausted his peremptory challenges and complied with requirements of Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980) and Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981) and charges error in the trial court’s refusal to excuse some six jurors whose responses to questions on the death penalty were equivocal. We need not recount the answers, the trial court’s discretion in these matters was not abused. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984).

Biased Juror

The trial court denied a motion by the defense to excuse one juror for cause after the defense was bereft of peremptory challenges. The juror was a member of the Jefferson County Sheriff’s Mounted Patrol. He had held that status for fourteen years. He testified he was paid for such services, but Wayne Matthews in a bench conference, denied the juror was paid. While there is no evidence of actual bias, we have stressed the need for some liberality in excusing prospective jurors for cause where there are ties to either side which might affect the juror’s impartiality. Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986).

Death-Qualified Juries

Another assertion of error concerns death-qualified juries, approved in Lockhart v. McCree, __ U.S __ 106 S.Ct. 1758 (1986). The sole purpose of the argument is to preserve the point for the future and we need not address it.

Mistrial Motions

A.

In opening argument the prosecutor told the jury that John Fallís was 26 years of age, was recently married, had a child by a former marriage, and had been a police officer for two years and four months. A defense mistrial motion was denied. No abuse of the trial court’s discretion occurred. Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980).

B.

When the state was unsuccessful in introducing an exhibit over the objection of the defense, the prosecutor commented, “Let the record reflect that the state offered this as Exhibit 21.” Duncan argues on the strength of Timmons v. State, 286 Ark. 42, 688 S.W.2d 944 (1985) that the comments constitute reversible error mandating a mistrial. We disagree. The incident was not comparable to what occurred in Timmons, where it was determined that the state called a witness to the stand knowing the proffered proof was inadmissible and then argued to the jury that the defense had prevented the evidence from being heard.

Washington Arrest Warrant

Over a defense hearsay objection the trial court admitted the front page of a warrant for Duncan’s arrest issued by the State of Washington in connection with the deaths of Barbara Currier and William Hartley. The warrant was offered as evidence that Duncan shot Officer Fallís in order to avoid arrest on the murder charges — an aggravating circumstance. Officer James Yoshida had already testified without objection that a warrant had been issued for Duncan’s arrest and the document itself added nothing. For the reasons already noted, the issue should not again rise.

Death Sentence Motivated by Passion or Prejudice

Because the jury found no mitigating circumstances, Duncan argues its rejection of testimony from his mother and sister that he had saved lives means the verdict was the result of passion or prejudice. We reject the argument. The jury may have discounted the testimony of Duncan’s wife and sister, or, while accepting its accuracy, have found it immaterial without manifesting passion or prejudice.

Arkansas Statutory Scheme

Another argument is that the Arkansas statutes require imposition of the death penalty if the jury finds aggravating circumstances outweigh mitigating circumstances. We have answered that contention by pointing out that irrespective of the jury’s findings as to aggravating versus mitigating circumstances, it can still return a verdict of life without parole, simply by rejecting the death penalty. Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986); Clines, et al. v. State, 280 Ark. 77, 656 S.W.2d 684 (1984).

Other Rulings by the Trial Court

Several evidentiary and procedural rulings over defense objections may be presented at retrial: photographs of the body of one of the Washington murder victims were introduced over the objection of the defense in the penalty phase. The victim, Barbara Currier, is pictured in a sitting position with her slacks pulled down around her knees. There is nothing notably inflammatory about the scene. Their admission was within the trial court’s discretion. Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979).

Shells of the same manufacture as those fired from the murder weapon were received in evidence in the guilt phase. We find no abuse of the trial court’s discretion. Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985).

Duncan objects to the state being allowed to close the argument in the penalty phase. As it had the burden of proof, it had the right to close. Collins v. State, 259 Ark. 8, 531 S.W.2d 13 (1975).

During the penalty phase the defense proposed to offer hearsay evidence that the father of Barbara Currier believed his daughter and William Hartley were involved in drugs, that Barbara was “a tough girl who would have fought like hell” to defend Hartley from an attacker. The defense asked the court to admit that proof without opening the door to proof by the state regarding Duncan’s character. Since the nature of the opposing proof is not disclosed, we cannot say it would be error to admit such proof at retrial. However, this issue should be mooted by the Washington proceedings.

Neither the trial court’s refusal to sequester the jury nor its restriction on extended voir dire constituted an abuse of discretion. Rector v. State, 280 Ark. 385, 655 S.W.2d 168 (1983); Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

Cruel and Unusual Punishment

The argument that the death penalty is cruel and unusual punishment in violation of the eighth amendment has been rejected by the United States Supreme Court, Gregg v. Georgia, 428 U.S. 153 (1976) and by this Court. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984).

For the reasons stated, the judgment is reversed and the case is remanded.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the result reached by the majority. However, I feel compelled to set out additional facts which I think constituted error. Before stating these additional facts, I believe the appellant was held incommunicado from Wednesday through Sunday and, in all probability, much longer. I agree with the majority that three and one-half days is too long to be so held.

I agree that the same evidence relating to the alleged homicides in Washington will not likely be introduced at the second trial. However, there is the possibility that such matters may still be pending in the Washington courts when this case is retried. Therefore, I would hold that the evidence that was presented at the trial below would be reversible error if it were to be introduced again.

There is a second point which I think probably will not reoccur, but it should be guarded against. A member of the Sheriffs’ Mounted Patrol, whether paid or not, is still an officer and should be rejected for cause from serving as a juror. In most cases there are hundreds of prospective jurors around. I see no need to invite error where it can be avoided.

The third point I wish to comment on is the state’s attempt to offer Exhibit # 21 into evidence after having been instructed not to do so. Although such action is subject to immediate treatment and cure by the trial court, it is nevertheless error to allow the state to bring this evidence to the jury’s attention as was done in this case.

Finally, I think the trial court erroneously admitted the front page of the arrest warrant for Duncan which had been issued by the state of Washington. This information is so highly unreliable and serves no purpose other than to influence and inflame the jury; therefore, its introduction could result in prejudicial error.


author: David Newbern, Justice.

text:
    Bessie Olean PHELPS, et al. v. JUSTISS OIL COMPANY, et al.
    86-186
    726 S.W.2d 662
    Supreme Court of Arkansas
    Opinion delivered March 23, 1987
    [Rehearing denied April 27 1987.]

      H. Derrell Dickens and Bobby E. Shepherd, for appellants Doris Crump Scaltritti, et al.

      Guthrie, Burbank, Dodson & McDonald, for appellants W.J. Ware, Jr. and Patricia M. Ware, Husband and Wife, Cora Thomas Ware, and Laveta Hearn.

      Chandler & Thomason, for appellee J.I. Phelps, Jr.

      Anderson, Crumpler & Bell, P.A., for Ellen Goode Lewis and Ellen Goode Lewis, Ltd.
   David Newbern, Justice.

This case involves a question of title to mineral rights. Justiss Oil Company, Inc., Amoco Production Company, and Arkansas Louisiana Gas Company, are purchasing oil and gas being produced on the land in question. They have placed royalty funds in the registry of the court and brought an interpleader action to ascertain to whom the funds are owed.

The interpleaded parties all trace their mineral rights claims to J. Ira Phelps. All acknowledge that J. Ira Phelps owned the land but that his title was not of record when he conveyed it on January 30, 1919, to J. G. Matthews. That conveyance was by warranty deed, and it provided “[a] 11 mineral rights reserved on above [d]escribed [l]ands.” Matthews, on October 8, 1919, conveyed the land to Walter Dumas by warranty deed providing “[t]his deed covers and embraces 1/16 of all oil and gas royalties.”

On January 25,1920, J. Ira Phelps brought suit to quiet title in himself of all the mineral interest in the land. He alleged he had reserved all of it and that Matthews and Dumas were claiming to own it. Matthews and Dumas answered, contending that J. Ira Phelps’s deed to Matthews had conveyed one-eighth of the mineral rights in the land. They counterclaimed against J. Ira Phelps, seeking reformation of the deed from J. Ira Phelps to Matthews to reflect that J. Ira Phelps had conveyed one-eighth of the mineral interest to Matthews, reserving seven-eighths for himself. No lis pendens notice was filed.

While the litigation between J. Ira Phelps and Matthews and Dumas was in progress, Dumas, on April 2, 1921, conveyed the land to D. D. Goode by warranty deed. Goode intervened in the quiet title litigation on June 16,1921, joining in the contention of Matthews and Dumas and claiming to own the surface and one-eighth of all the oil and gas mineral rights. However, on January 12, 1922, Goode amended his pleading to claim that J. Ira Phelps’s attempted reservation of the mineral rights had been wholly ineffective because of a conflict between the granting clause and the habendum clause of the deed from J. Ira Phelps to Matthews. Goode’s argument prevailed, and thus the chancery court quieted title to the surface and all minerals in Goode on January 26, 1922.

Between the time J. Ira Phelps commenced his quiet title action against Matthews and Dumas and the time of the decision quieting the title to the surface and minerals in Goode, J. Ira Phelps made three fractional royalty conveyances; one to F. J. Crump, one to F. J. Hearn, and one to W. J. Ware.

On October 18, 1948, Goode’s estate conveyed the land to Bessie Olean Phelps, reserving one-half the mineral interest. On April 10, 1968, Bessie Olean Phelps conveyed the land to Ira Phelps, Jr.

The following is a diagram of the title:

In their interpleader action, Justiss, Amoco, and Arkla named the following persons as defendants: Bessie Olean Phelps; J. Ira Phelps, Jr., and his wife; the heirs of F. J. Crump; the heirs of F. J. Hearn; and the heirs of W. J. Ware. They later amended to add Ellen Goode Lewis and Ellen Goode Lewis, Ltd., as defendants.

The chancellor held that’Ellen Goode Lewis, Ltd., whose interest in the minerals stemmed from the reservation of one-half the mineral interest to the Goode estate, and Ira Phelps, Jr., whose rights also originated in the Goode estate, were the only parties entitled to the royalties. The Crump, Hearn, and Ware heirs, who are the appellants here, were held to have no entitlement. The decree in part provided:

From these facts, the Court finds that Phelps had no record title at the time of his conveyances to Crump, Hearn and Ware. The purchasers were either charged with actual notice of the pending litigation instituted by Phelps, or charged with a duty to investigate the condition of the title. The purchasers are charged with actual notice of the litigation, and are bound by the final decree in that litigation dated January 26, 1922, in which it was ruled that all the minerals were vested in D. D. Goode. . . .

We agree with the result reached by the chancellor, and thus we affirm the decree.

The Ware and Hearn heirs argue it was error to charge F. J. Hearn and W. J. Ware with knowledge of the litigation between J. Ira Phelps and Matthews and Dumas at the time their ancestors received fractional royalty conveyances from J. Ira Phelps. The Crump heirs make the same argument with respect to F. J. Crump, and they also argue the 1922 decree erroneously held invalid the reservation of the mineral rights in the deed from J. Ira Phelps to Matthews.

1. The quiet title decree

The brief filed on behalf of the Crump heirs invites us to hold that the 1922 decree was incorrect, as the reservation to J. Ira Phelps of all the minerals was obviously in the granting clause rather than in the habendum, thus it was error to hold there was a conflict. The brief filed by J. Ira Phelps, Jr., takes no exception to that interpretation of the deed, but it and the brief of Ellen Goode Lewis and Ellen Goode Lewis, Ltd., both note that Crump, Hearn, and Ware were all in privity with J. Ira Phelps, and thus by the doctrine of res judicata they are bound by that decree.

The res judicata issue and the extent to which the heirs of Crump, Hearn, and Ware are bound by the 1922 decree will be discussed below. The short, but complete, answer to the request of the Crump heirs that we hold the 1922 decree erroneous is that it has not been appealed, and we are aware of no authority which would permit us to reverse it now.

2. Notice

The heirs of Hearn and Ware contend the chancellor in the decree now on appeal erred in holding that their ancestors who purchased from Phelps were on notice, either actual or inquiry, of the litigation between J. Ira Phelps and Matthews, Dumas, and Goode.

The appellants stipulated that the interests Crump, Hearn, and Ware purchased from J. Ira Phelps were nonparticipating royalty interests. Conveyances of royalty interests are governed by the same law as land conveyances generally. 3A W. Summers, Oil and Gas, § 598, n. 61, p. 197 (2nd ed. 1958), citing Johnson v. Palmer, 220 Ark. 397, 247 S.W.2d 995 (1952). One who purchases from a grantor who does not have an apparently perfect record title is not a bona fide purchaser for value without notice. Taylor v. Scott, 285 Ark. 102, 685 S.W.2d 160 (1985); 2 American Law of Property, § 10.82 (A.J. Casner ed. 1952). Crump, Hearn, and Ware, therefore, tooktheir royalty interests with notice of any defects in Phelps’s title to the mineral interests.

By its decree of January 26, 1922, the Columbia County Chancery Court held that J. Ira Phelps had not reserved any mineral interest when he conveyed to Matthews on January 30, 1919.

The Crump heirs insist, and they are joined by the Hearn and Ware heirs in arguing, that if Crump, Hearn, and Ware were on notice of the litigation between J. Ira Phelps and Matthews and Dumas they would have known only that Matthews and Dumas were claiming only a Vs interest in the minerals. Their inspection of the original pleadings in that litigation would have shown that, even if Matthews and Dumas prevailed, J. Ira Phelps would have had enough remaining mineral interest (%) to satisfy his conveyances to them. We might be persuaded by that argument if the issue here involved solely the effect of notice of the litigation, but that is not the case. Here, we are concerned not just with notice of the litigation but with notice of any flaw in the title of J. Ira Phelps. The court held in 1922 that J. Ira Phelps held no title to that which he previously purported to convey to Crump, Hearn, and Ware because his 1919 attempt to reserve it was defective.

3. Res judicata

ALI Restatement, Second, Judgments, § 43 (1980) provides, in part, as follows:

§ 43. Effect of Judgment Determining Interests in Property on Successors to the Property
A judgment in an action that determines interests in real or personal property:
(a) Conclusively determines the claims of the parties to the action regarding their interests; and
(b) Has preclusive effects upon a person who succeeds to the interest of a party to the same extent as upon the party himself.

The doctrine of res judicata thus would clearly have precluded J. Ira Phelps from relitigating with D. D. Goode the title to the mineral interest in question. It is equally preclusive of those in privity with J. Ira Phelps and whose title is dependent upon the validity of his title. Bentrup v. Hoke, 245 Ark. 572, 433 S.W.2d 139 (1968); Missouri Pacific Railroad Co. v. McGuire, 205 Ark. 658, 169 S.W.2d 872 (1943); Turley v. Owen, 188 Ark. 1067, 69 S.W.2d 882 (1934).

4. Conclusion

The real rub in this case is the appellants’ contention that the 1922 decree was incorrect. The chancellor in the decree now on appeal apparently agreed that the 1922 decree was erroneous. As he recognized, apparently, the fact that a previous decree may have been erroneous or was patently so does not lessen its binding effect. Wells v. Heath, 269 Ark. 473, 602 S.W.2d 665 (1980); Tri-County Highway Improvement District v. Vincennes Bridge Co., 170 Ark. 22, 278 S.W. 627 (1926).

Affirmed.


author: Tom Glaze, Justice.

text:
    William Edward EAVES, II v. Edith Kay DOVER
    86-220
    726 S.W.2d 276
    Supreme Court of Arkansas
    Opinion delivered March 23, 1987

      Gregory E. Bryant, for appellant.

      T.B. Patterson, Jr., for appellee.
   Tom Glaze, Justice.

Appellant, the father, filed a paternity petition, seeking a paternity determination of his son. Appellee, the mother, answered, admitting appellant was the father of the child but seeking a denial of his visitation rights and recovery of her lying-in expenses, child support and attorney’s fees. An order was issued by the juvenile referee, determining appellant to be the natural father, and ordering him to pay lying-in expenses of $3,113.65 and attorney’s fees of $500.00. The circuit court affirmed the referee’s order and awarded an additional attorney’s fee of $350.00. Appellant appeals, contending that Ark. Stat. Ann. § 34-706 (Supp. 1985) is a gender-based statute that violates the equal protection clause of the fourteenth amendment to the U.S. Constitution. He further argues that, because the statute is unconstitutional, the award of lying-in expenses and attorney’s fees should be reversed. We hold § 34-706 is constitutional, and, therefore, affirm the trial court.

Section 34-706 provides in relevant part:

If it is found by the court that the accused is the father of the child, the court shall render judgment against him for the lying-in expenses in favor of the mother, or person who incurred the same, if required or claimed, for a sum not less than twenty-five dollars ($25.00), and if the same shall not be paid upon the rendition of such judgment, together with all costs which may be adjudged against him in said case, then the court shall have the power to commit the accused person to jail until the same shall be paid, with all costs;
* * *
Provided, however, that the court may at any time, enlarge, diminish, or vacate any order or judgment in the proceedings under this Act [§§ 34-701 — 34-714] as justice may require and on such notice to the defendant as the court may prescribe.

Appellant argues § 34-706 denies him equal protection and, in effect, is a civil punishment in that all costs fall squarely on him. Appellant relies upon Orr v. Orr, 440 U.S. 268 (1979) wherein the Supreme Court held unconstitutional Alabama alimony statutes which provided that husbands, but not wives, may be required to pay alimony upon divorce. To this same effect, see Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979). The Orr Court determined that the statutory scheme in question created a constitutionally-suspect classification wherein the distinctions made were gender-based without serving important governmental objectives. That Court’s holding and its underlying rationale in no way apply here.

We first are obliged to point out that appellant reads § 34-706 too narrowly when arguing that statute affords the trial court no discretion and requires it to impose all lying-in expenses upon the father. As early as 1910, this court, in construing § 34-706, held that the award of lying-in expenses must be confided largely to the discretion of the trial court. Belford v. State, 96 Ark. 274, 131 S.W. 953 (1910). In 1979, the General Assembly amended § 34-706, empowering the trial court with the discretion at any time to enlarge, diminish or vacate any order or judgment in these filiation proceedings as justice may require. See Act 718 of 1979. Thus, if any doubt existed that a trial court possessed discretion in the award of lying-in expenses, attorney’s fees or support prior to 1979, clearly that doubt was eliminated by the General Assembly’s passage of Act 718.

The major purpose of Arkansas’s filiation laws is to provide a process by which the putative father can be identified so that he may assume his equitable share of the responsibility to his child. However, the court, in awarding lying-in expenses or attorney’s fees under § 34-706, may exercise its discretion in determining the amount that father should bear, and, in doing so, it may even consider the mother’s financial means when making an award.

The trial court, under our reading and interpretation of § 34-706, has discretion in assessing the amount of any awards made under the provisions of that statute. Thus, we conclude that § 34-706 does not discriminate on the basis of sex and, contrary to appellant’s contention, does not violate the equal protection clause.

We affirm.

       Appellant challenges only the constitutionality of § 34-706 and not its application.

       The trial court ordered appellant to pay all lying-in expenses in this cause, but appellant limited his argument below and on appeal to the constitutionality of § 34-706 and not to the reasonableness of the award made pursuant to that law.


author: Per Curiam.

text:
    Henry GUNN, Jr. v. STATE of Arkansas
    CR 86-194
    726 S.W.2d 278
    Supreme Court of Arkansas
    Opinion delivered March 23, 1987

      Appellant, pro se.

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

Petitioner was convicted by a jury of second degree murder and sentenced to twenty years in the Arkansas Department of Correction. The Court of Appeals affirmed. Gunn v. State, CACR 85-29 (August 28, 1985). Petitioner now seeks permission to proceed in circuit court pursuant to Criminal Procedure Rule 37. He also requests a copy of the transcript of the trial, all records, documents, docket sheets and “minutes” related to his case.

The motion requesting photocopies of the transcript and other items is denied. Petitioner states that he needs the material to support his Rule 37 petition so that he will not be precluded from litigating unspecified constitutional claims, but he does not explain why the material is needed to support any particular argument. A petitioner is not entitled to a copy of the trial record or other material at public expense unless he demonstrates some reasonably compelling need for specific documentary evidence to support a particular allegation. Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985). It should be noted that when an appeal has been lodged in either this court or the Court of Appeals, the appeal transcript remains permanently on file with the Clerk of the Supreme Court. Counsel may check the transcript out through the Clerk’s office for a period of time, and persons who are not attorneys may review a transcript in the Clerk’s office and photocopy all or portions of it. An incarcerated person desiring a photocopy of pages from a transcript may write this court and request that the copy be mailed to the prison. All persons, including persons in custody, must bear the cost of photocopying. Austin v. State, supra. See also Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980).

Petitioner’s petition for relief under Rule 37 consists of thirty-five typewritten pages and contains a number of allegations of both trial error and error by petitioner’s attorney at trial. Many of the allegations also have multiple subpoints. New of the allegations state any facts in support of them and no explanation is given in most instances to show how the petitioner was prejudiced. Several of the allegations are unclear. Since allegations which state only a conclusion and lack a showing of prejudice do not warrant postconviction relief, Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978), we will discuss only those allegations for which petitioner has provided at least rudimentary facts in support and which are capable of being understood without resort to surmise and conjecture.

I.

Petitioner first alleges that counsel should have secured his release on bail. As denial of bail for whatever reason does not affect the validity of a judgment, failure to release an accused on bail is not a ground for postconviction relief. Smith v. State, 258 Ark. 533, 528 S.W.2d 359 (1975).

II.

Petitioner also finds fault with counsel for not challenging his arrest as illegal. He does not contend that any evidence was obtained as a result of the arrest. A defendant fairly tried in a court of competent jurisdiction is not entitled to be set free based upon some flaw in the manner of his arrest. Probable cause for arrest is immaterial since the court’s jurisdiction to try the accused does not depend upon the validity of his arrest. Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974). A challenge to the validity of an arrest is not cognizable under Rule 37.

III.

Petitioner contends that the jury was biased against him. As support for the allegation, he states that only one black juror was chosen and that the remaining jurors were selected from an all-white section of the county. He does not argue that the state sought to systematically exclude black jurors or offer any proof that racial bias was a factor in his trial. It cannot be concluded from the unsubstantiated allegation that the jury was improperly selected.

Petitioner further alleges that counsel seated the jurors without questioning them and accepted some jurors without his approval. He asserts that one of the jurors was monitoring his case for the VA hospital for some unexplained reason and that he had had unspecified business dealings with some of the others. Counsel had the opportunity during voir dire of the jury to ascertain whether any potential juror was biased against his client. Petitioner does not allude to any proof that bias existed. The jury is presumed unbiased, and the petitioner has the burden of overcoming that presumption by demonstrating actual bias on the part of a juror. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984); Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983). Petitioner has presented no evidence of actual bias on the part of any juror.

IV.

Petitioner alleges that after the verdict was pronounced, the foreman of the jury told the judge that one juror had been confronted by a member or members of the victim’s family and told “you better get him if you have to railroad him.” He states that the foreman told the judge that the incident did not affect the verdict and that the judge told the sheriff to get the names of those involved so that he could talk to them. Petitioner contends that counsel was ineffective in that he failed to request a mistrial after learning about the incident.

The record does not contain the proceedings after the jury returned with its verdict, so we have only petitioner’s version of what occurred. Even if petitioner’s account is entirely accurate, however, he has not proven that counsel was ineffective under the standard for judging ineffective assistance of counsel set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance of counsel under Strickland, a petitioner must show that counsel’s performance was deficient in that counsel made an error so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Even if counsel’s conduct is shown to be professionally unreasonable, the judgment must stand, unless the petitioner demonstrates that the error had a prejudicial effect on the outcome of the proceeding. A reasonable probability that but for counsel’s conduct the result of the proceeding would have been different is a probability sufficient to undermine confidence in the outcome. Here, petitioner states that the court questioned the foreman as to whether the incident affected the verdict and determined that it did not. Although another attorney in a similar situation might have elected to request a mistrial, petitioner has not shown that counsel’s failure to do so had a prejudicial effect on the outcome of the proceeding.

V.

Petitioner also alleges that counsel should have requested a mistrial because the prosecutor went into the jury room during deliberations to check on how long deliberations were going to last. In another part of the petition, petitioner asserts that the prosecutor said he went into the jury room to tell the jury about the parole system.

The record is silent on what, if anything, occurred while the jury was deliberating. Needless to say, it would have been highly improper for the prosecutor to. enter the jury room for any reason and flagrant error for him to inform the jury about the parole system. If the record in this case did not end abruptly with the beginning of the jury deliberations, it might be possible to determine whether there was any improper conduct. The absence of any record, coupled with petitioner’s allegation which, if proven, could establish prejudice sufficient to affect the outcome of his trial, requires an evidentiary hearing. This case presents a glaring example of an occasion when an evidentiary hearing is necessary, not because the allegation is particularly credible, but rather because we have been given a deficient record of the trial court’s proceedings. We grant petitioner permission to file a petition in circuit court for an evidentiary hearing limited to the issue of whether the prosecutor entered the jury room; and, if so, whether petitioner suffered prejudice such that counsel was ineffective for failure to request a mistrial.

VI.

As a basis for several allegations of ineffective assistance of counsel, petitioner complains that counsel did not conduct an adequate pre-trial investigation. He alleges that counsel should have requested a continuance to prepare a defense and familiarize himself with the crime scene so that evidence could have been presented to show that the state’s witnesses were lying about how the shooting occurred. Although petitioner states at several points in the petition that the physical evidence obtained from the crime scene and in the autopsy would have supported his version of the shooting, he offers nothing specific to demonstrate how the evidence could have been used.

Petitioner also contends that he was denied the right to subpoena witnesses. As he fails to say who denied him the right, what witnesses were available or what their testimony would have been, there is no way to determine whether he was prejudiced.

VII.

During the state’s case, counsel for petitioner objected that two witnesses for the state were not competent to testify because they were under the influence of alcohol. The court immediately held a hearing in chambers and concluded that the two women in question had not been drinking. Petitioner asserts that the women were indeed drunk and counsel should have made sure that they were given a breathalyzer examination.

The allegation borders on being frivolous. The trial court held a hearing and concluded that there was nothing to indicate that the women were intoxicated. The sheriff who had spent at least an hour with the witnesses in the witness room testified that he had detected no odor of alcohol on either woman. Counsel was unable to offer any proof that the women had been drinking and stated that he based his request for a hearing on a visit with the women which occurred sometime before the day of trial and on petitioner’s knowledge of their “demeanor.” Under the circumstances, counsel would have had no basis to press the court to order a breathalyzer test.

VIII.

Petitioner next alleges that the prosecutor withheld evidence favorable to the defense and mentions specifically the results of laboratory tests on blood stains on his clothing and a report on the victim’s arrest record. Petitioner provides no substantiation for the allegation to show how the test results or evidence of the victim’s arrest record would have been useful to the defense. Allegations without factual support are not grounds for postconviction relief. Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978).

IX.

Petitioner repeatedly argues that he was entitled to an investigator because the prosecutor had one. Petitioner offers no authority for the proposition that an accused is entitled to the services of an investigator at state expense, and we know of none.

X.

The state’s pre-trial motion in limine was granted to exclude evidence of buying, selling and drinking alcohol at the house where the shooting occurred. Petitioner alleges that counsel was ineffective in that he “allowed” the motion to be granted. Counsel argued at length against the motion. Counsel’s lack of success does not equate with ineffectiveness. See Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983).

XI.

The jury was instructed on first and second degree murder. Petitioner argues that counsel was ineffective for not requesting an instruction on manslaughter as well because there was no evidence that the shooting was premeditated. He further alleges that all the state’s witnesses lied in their accounts of the shooting from which the jury inferred that he acted with premeditation. He contends that the witnesses were coerced into deviating from their pre-trial accounts of the shooting. Petitioner does not say what form the coercion took or allude to any proof of coercion.

The court on appeal found substantial evidence that petitioner was guilty of murder in the second degree, an offense which requires premeditation. It is evident that petitioner is attempting to use Rule 37 as a means to again attack the sufficiency of the evidence and the credibility of the state’s witnesses under the guise of a claim of ineffective assistance of counsel. Challenges to the credibility of witnesses and the sufficiency of the evidence are not grounds for a collateral attack on a judgment under Rule 37. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). We have consistently held that a petitioner may not question the weight and sufficiency of the evidence under our postconviction rule by merely framing his attack on the evidence in an allegation of ineffective assistance of counsel. Hickey v. State, 287 Ark. 197, 697 S.W.2d 118 (1985).

XII.

Petitioner’s final allegations of ineffective assistance of counsel concern the adequacy of counsel’s representation on appeal. Petitioner first points out that counsel tendered the record late. Petitioner is correct, but since the record was eventually accepted for filing, he could have suffered no prejudice from counsel’s tardiness.

Next, petitioner alleges in conclusory fashion that counsel: (1) failed to raise on appeal issues “concerning the prosecution’s line of questioning of the state’s witnesses;” (2) failed to send a copy of the medical examiner’s lab reports and autopsy results to be compared with the medical examiner’s testimony in court; (3) refused to allow petitioner access to those parts of the transcript which were not included in the official transcript; and (4) allowed an incomplete transcript to be submitted to the court. Counsel is not ineffective for failing to raise every issue suggested by his client. See Jones v. Barnes, 457 U.S. 1104 (1982). The conclusory allegations advanced by the petitioner are not enough to show that his attorney on appeal failed to raise any meritorious issue.

Petition granted in part and denied in part; motion for transcript denied.


text:
    David Charles STEPHENS v. STATE of Arkansas
    725 S.W.2d 855
    Supreme Court of Arkansas
    Opinion delivered March 23, 1987

      Robert C. Marquen, for appellant.
    No response.
   Per Curiam.

Petitioner David Charles Stephens, by his attorney, has filed a second motion for a rule on the clerk. His attorney, Robert C. Marquette, has by affidavit admitted it was his fault that the record was not timely tendered.

We find that the error, admittedly made by the criminal defendant’s attorney, is good cause to grant the motion for a rule on the clerk.

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


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

text:
    Don VENHAUS, Pulaski County Judge, Pulaski County, Arkansas v. PULASKI COUNTY QUORUM COURT and Gary ADAMS, et al.
    86-182
    726 S.W.2d 668
    Supreme Court of Arkansas
    Opinion delivered March 30, 1987

      Ivester, Henry, Skinner & Camp, by: Stephen L. Curry, for appellant.

      Lesly W. Mattingly and Brent Baber, by: Lesly W. Mat-tingly; and Wood Law Firm, by: Raymond Weber and Douglas R. Jones, for appellees.
   Jack Holt, Jr., Chief Justice.

We are asked to decide in this case what authority, if any, a trial court has to dismiss an appeal, and which of the defendants in this case — Don Venhaus, Pulaski County Judge, or the Pulaski County Quorum Court — has the right to appeal a judgment rendered upon a claim against the county. We hold that the trial court was without authority to enter its order dismissing the appeal and that Venhaus as county judge has statutory authority to pursue the appeal.

In 1982 a lawsuit was filed in Pulaski Chancery Court by Pulaski County deputy sheriffs seeking to recover overtime pay. Pulaski County, Venhaus, the Quorum Court, and the sheriff were named as defendants. On August 13, 1985, the chancellor entered an order finding the county was obligated to pay the overtime wages. On April 15, 1986, the chancellor entered judgment against Pulaski County for $61,433.22.

On May 15,1986, Venhaus, representing Pulaski County in his official capacity as County Judge, filed a notice of appeal. The Quorum Court filed a motion to dismiss the appeal on May 22, 1986, alleging that they were the sole and proper party to pursue an appeal on behalf of Pulaski County. On July 24, 1986, the chancellor granted the motion on that basis, dismissing Venhaus’s appeal. It is from the dismissal of the appeal only, and not the merits of the award of overtime pay, that this appeal is brought.

We first address the question of whether a trial court can ever dismiss an appeal, or if, once a notice of appeal is filed, the trial court loses its jurisdiction.

In Estes v. Masner, 244 Ark. 797, 427 S.W.2d 161 (1968), this court stated that “[i]t is true that once an appeal is taken to, and docketed in, this court, the trial court is deprived of jurisdiction to further act in this matter.” Again in Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981), this court held:

We first consider the contention that the trial court erred in dismissing the appeal. There is no question that the trial court still had jurisdiction of the case when the order of dismissal was entered because the record had not yet been lodged in the appellate court.

Brady and Estes indicate that a trial court retains jurisdiction as long as the record has not been lodged in the appellate court. However, this court recently announced an absolute rule prohibiting a trial court from ever dismissing an appeal. In Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), we explained that “our rules of appellate procedure do not confer on the trial court the power to dismiss appeals. Those rules . . . are for this court to apply.” (emphasis in original). Accordingly, the chancellor erred in dismissing Venhaus’s appeal.

Inasmuch as the appeal is reinstated by our holding, we reach the threshold question of which party has the authority to appeal.

At a Quorum Court meeting on June 24,1986, ordinance 86-OR-69A was enacted which prohibited the county judge from spending county funds on the prosecution of an appeal, and appropriated funds to pay the judgment against the county. This action was vetoed by the county judge, however, the veto was overridden by the Quorum Court on July 22, 1986.

The Quorum Court was acting within its authority when it appropriated the funds to pay the judgment and voted to override Venhaus’s veto. Arkansas Stat. Ann. § 17-3801 (Repl. 1980) provides that the Quorum Court has the power to “appropriate public funds for the expenses of the county. . .”,to“fixthe number and compensation of deputies. . .”, and “to override the veto of the county judge.” The Quorum Court’s actions were in keeping with the provisions of this statute in that they appropriated funds to pay a judgment against the county, which was to compensate the deputies for overtime pay, and properly voted to override the county judge’s veto.

Likewise, the county judge was acting within his statutory and constitutional authority when he pursued an appeal of the judgment against the county. We have held that amendment 55 changed the duties of the county judge from being those of an official who pays claims as a judicial officer to those of an officer who pays claims as an administrative officer, Beaumont, Judge v. Adkisson, Judge, 267 Ark. 511, 593 S.W.2d 11 (1980). Amendment 55 also delineates the duties of the county judge as regards appropriations by the Quorum Court. Section 3 of amendment 55 provides in part that the county judge shall “authorize and approve disbursement of appropriated county funds.” Arkansas Stat. Ann. § 17-3901 (B) (Repl. 1980) elaborates on the procedures to be followed by the county judge in this regard when he authorizes and approves disbursements. The statute provides that, before approving any voucher for the payment of county funds, the judge shall determine:

(a) there is a sufficient appropriation available for such purpose, and that there is a sufficient unencumbered balance of funds on hand in the appropriate county fund to pay therefor;
(b) that such expenditure is in compliance with the purposes for which the funds are appropriated;
(c) that all State purchasing laws and other State laws or ordinances of the quorum court are complied with in the expenditure of said moneys;
(d) that the goods or services for which expenditure is to be made have been rendered and that the payment thereof has been incurred in a lawful manner and is owed by the county, (emphasis added).

The logic of § 17-3901 (B)(d) is obvious. The county judge, as chief administrative officer of the county, before disbursing county funds, must determine that the expenses have been incurred in a lawful manner and that payment is owed by the county. By electing to appeal the chancellor’s award of a monetary judgment, the county judge was attempting to ensure that the requirements of § 17-3901 (B)(d) were met.

The purpose of any appeal is to determine whether the judgment or verdict rendered below is correct and damage awards are typically not paid until the appeal has been heard. Once a determination has been made on appeal, then a judgment is enforceable and, in this case, the county judge could be certain that the claim is lawful and is owed by the county.

Accordingly, the order of the trial court is reversed and Venhaus’s appeal is reinstated.

Reversed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I agree that the trial court is without jurisdiction to dismiss a valid appeal. However, we should dismiss this appeal upon our own volition. In addition to a waste of time and expense, the deputies will suffer because of this prolongation of a matter which is already moot.

The Pulaski County Quorum Court is vested with the sole authority for exercising discretionary legislative functions. In this respect the county judge is only an administrative officer of the quorum court. This is a case where the tail is wagging the dog. In my opinion the only result of an appeal would be to delay the deputies from receiving their money and to needlessly cost the courts and county time and expense.

An exercise in futility should not be encouraged by this Court. If we were to require the losing party to personally pay for the expenses of the appeal, the appeal would likely be dismissed. Neither this Court nor the county judge has the right to overrule the quorum courts on matters within their sound discretion.

Appropriations of county funds is a matter which lies solely within the jurisdiction of the quorum court. See Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980).

The appeal should be dismissed now.


author: Darrell Hickman, Justice.

text:
    HIGHLAND SCHOOL DISTRICT v. TRAVENOL LABORATORIES, INC., et al.
    86-305
    726 S.W.2d 670
    Supreme Court of Arkansas
    Opinion delivered March 30, 1987

      Stewart Lambert, Deputy Prosecuting Att’y, and Harkey, Walmsley, Belew & Blankenship, by: Leroy Blankenship, for appellant.

      Roy Danuser, and Smith, Smith & Duke, by: Griffin Smith, for appellee.
   Darrell Hickman, Justice.

The question presented in this appeal is whether taxes can be collected in a civil suit for fraud. The answer is no.

The Highland School District sued Travenol Laboratories, Inc., and Omnis Surgical, Inc., for fraud, alleging these corporations have for several years concealed their ownership of certain real property to evade property taxes. The present and former county assessors, county clerks, and tax collectors were also named as defendants. The suit asked for judgment in an amount equal to what the school district would have received if property taxes had been assessed and collected.

The corporations filed a motion to dismiss, saying Highland had no standing to file suit. Subsequently, a motion to intervene and a second complaint were filed, adding the prosecuting attorney, the county judge, and the present and former county officials as plaintiffs. The complaint made the same allegations, except punitive damages were also sought for fraud.

The trial court dismissed the suit and explained why in his findings of fact and conclusions of law:

The issue of standing to sue does not, in this proceeding, depend on disputed facts. Quite simply, the corporate defendants argue that in the area of tax assessment, levy and collection, private causes of action do not exist. This function is reserved to the particular government entity involved. The fact that an individual or entity, private or public, might eventually be the recipient of taxes paid by a particular individual or entity gives rise to no right of action on the part of the recipient. The court agrees.
* * * *
That the duty of pursuing delinquent taxpayers is an official rather than a private matter is made clear by State v. Little, 94 Ark. 217, 126 S.W. 613 (1910). Such matters as assessment of taxes are beyond the powers of the courts. Cook v. Surplus Trading Co., 182 Ark. 420, 31 S.W.2d 521 (1930).
It is thus apparent that the complaint cannot be entertained in this court, as it attempts to do what the law forbids, permit direct action against an allegedly delinquent taxpayer, omitting entirely the statutory necessity for assessment, levy and collection. The fact that the prosecuting attorney has attempted to intervene does not change the situation. His right to proceed is unimpaired and represents an independent remedy, hence he has no interest that needs protection by intervention of right. ARCP 24; Billabong Products, Inc. v. Orange City Bank, 278 Ark. 206, 644 S.W.2d 594 (1983).

In State v. Little, 94 Ark. 217, 126 S.W. 713 (1910), we said:

The Legislature having provided the agencies for the assessment of property for taxation and the manner of its exercise, the actions of such officers is conclusive on the state in the absence of a statute to the contrary; and the courts have no power to supervise and correct the assessments made by them.

The remedy, if one exists for these plaintiffs, is by way of the assessment and collection procedures set forth in statutes. Criminal charges are an alternative punitive action if a crime has been committed. A private common law action for fraud does not exist to collect taxes.

Appellees argue the appellant’s abstract is deficient under Rule 9, Rules of Supreme Court, and we agree because the findings of facts and conclusions of law were not adequately abstracted. The appellees supplemented the abstract and to compensate for their costs are awarded $100.00, Rule 9(e)(1), Rules of Supreme Court.

Affirmed.

Purtle, J., not participating.