text:
    Fred Martin RAINEY v. STATE of Arkansas
    CR 92-302
    837 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered September 21, 1992

      Gibbons Law Firm, by: David L. Gibbons, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Derden, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Fred Martin Rainey, was convicted of first degree murder in connection with the shooting death of Joetta Kirkpatrick. He was sentenced to twenty years imprisonment. Rainey alleges error in the Trial Court’s failure to instruct the iury on the lesser included offense of manslaughter. We hold there was a rational basis for the manslaughter instruction and reverse and remand.

Rainey, who was approximately 25, and Kirkpatrick, a middle-aged woman, had known each other for several years and had engaged in sexual intercourse on at least three occasions. On March 6, 1991, at approximately 7:00 p.m., Rainey went to visit Kirkpatrick at her house, carrying a loaded semi-automatic pistol. Rainey testified he carried the gun for protection. Testimony revealed that both Rainey and Kirkpatrick had been drinking that day, and Rainey had been smoking marijuana. Kirkpatrick let Rainey into her house through the side door, and he placed the pistol on the kitchen bar. They engaged in sexual intercourse in the bedroom.

Afterward, according to Rainey’s testimony, they had a heated argument. Kirkpatrick told Rainey she was going to tell his wife about their affair and “ruin his family.” She then got dressed and walked into the front room. Rainey presumed Kirkpatrick was getting a beer from the kitchen. The argument continued while Rainey was dressing in the bedroom. Rainey called Kirkpatrick an “old whore” and told her he was not going to see her anymore.

Upon walking into the front room, Rainey testified he saw Kirkpatrick pointing the pistol at him. He grabbed her hand, pointed the gun toward the ceiling, and a shot fired. Police later recovered a bullet from the ceiling. Rainey then took the gun away from Kirkpatrick and shot her four times in the head as she was falling to the floor. He testified that after the first shot he was so hysterical that he kept firing. The entire incident, according to Rainey, took one or two seconds.

Rainey admitted he did not shoot Kirkpatrick in self defense. He stated, “I just went hysterical,” and “I was already mad and I just took the gun away from her and shot her.” Rainey said he killed Kirkpatrick out of anger because she had threatened to tell his wife about their affair and had tried to shoot him.

The Trial Court instructed the jury on first and second degree murder but refused to instruct on manslaughter. In the process of reaching the decision that a manslaughter instruction was unnecessary, the Court stated that the killing was not motivated by self defense and Rainey intended to kill the victim.

a. Rational basis for manslaughter instruction

Rainey’s proffered manslaughter instruction is based upon Ark. Code Ann. § 5-10-104(a) (1987) which provides in part:

(a) a person commits manslaughter if:
(1) He causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is a reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be;
***
(3) He recklessly causes the death of another person;

When there is a rational basis for a verdict acquitting a defendant of the offense charged and convicting him of an offense included in the offense charged, an instruction on the lesser included offense should be given, and it is reversible error to fail to give such an instruction when warranted. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991); Ark. Code Ann. § 5-1-110(c) (1987) . When there is the slightest evidence to warrant an instruction on a lesser included offense, it is error to refuse to give it. See, e.g., Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988); Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980) (emphasis added).

In this case, there was evidence which would support a finding that, although Rainey admittedly purposely killed Kirkpatrick and thus committed what would otherwise have been murder, he did so under the influence of extreme emotional disturbance for which there was a reasonable excuse. The jury was presented with evidence that Kirkpatrick had attempted to kill Rainey just before he shot her. There was testimony that Kirkpatrick had threatened to tell Rainey’s wife about his affair. Rainey testified that at the time of the shooting he was “hysterical,” “upset,” and “mad.” There was thus some evidence to support the manslaughter instruction.

In a recent case, Frazier v. State, 309 Ark. 228, 828 S.W.2d 838 (1992), Frazier admitted killing the victim but stated he did so because the victim teased him. The Trial Court denied Frazier’s request for a manslaughter instruction, and we affirmed. There was no evidence that Frazier was acting under the influence of an extreme emotional disturbance. His irritation over being teased did not constitute evidence of an extreme emotional disturbance for which there was a reasonable excuse.

The Frazier case is readily distinguishable from this one. Here, evidence indicated that Rainey had been threatened with a gun before the killing occurred which, combined with the ongoing argument and the threat to ruin his family relationship, could well have been considered by the jury to have caused him to suffer extreme emotional distress, especially when viewed from his perspective as the statute requires. There is a substantial difference between the emotional effect of being teased and being threatened with a gun.

In Wootton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960), quoting from Clardy v. State, 96 Ark. 52, 131 S.W. 46 (1910), the following obiter dictum appears:

The passion that will reduce a homicide from murder to manslaughter may consist of anger or sudden resentment, or of fear or terror; but the passion springing from any of these causes will not alone reduce the grade of the homicide. There must also be a provocation which induced the passion, and which the law deems adequate to make the passion irresistible. An assault with violence upon another who acts under the influence thereof may be sufficient to arouse such passion.

Continuing, we stated that “mere threats or menaces, where the person killed was unarmed and neither committing nor attempting to commit violence on the defendant at the time of the killing, will not free him of the guilt of murder.” On the other hand, we made it clear that adequate provocation can occur when the victim is armed or is attempting to commit violence toward the defendant.

In Collins v. State, 102 Ark. 180, 143 S.W. 1075 (1912), we held the grade of a homicide may be reduced from murder to manslaughter by reason of a passion caused by a provocation sufficient to make the passion irresistible. We said “[i]t was perfectly proper to show that in a given case the passion did exist for the reason that it was induced by anger suddenly aroused, or by surprise, or by fear, or by terror.” We find these older cases to be instructive and relevant regardless of the fact that they are couched in terms of the “heat of passion,” Ark. Stat. Ann. § 41-2208 (Repl. 1964)(repealed), rather than the replacement language “extreme emotional distress” found in our current statute. See also Wharton’s Criminal Law § 158 (1979) (stating an assault may constitute adequate provocation to reduce a killing to voluntary manslaughter); LaFave & Scott Substantive Criminal Law § 7.10(b)(3) (1986) (stating an unsuccessful attack on the defendant may constitute adequate provocation in extreme cases, such as where the attacker fires a pistol at him).

The jury was presented with evidence that Rainey shot Kirkpatrick while in a fit of anger aroused by being threatened with a gun. The jury could have believed that this anger provoked an extreme emotional disturbance for which there was a reasonable excuse, and thus it could have found Rainey guilty of manslaughter rather than murder in the first degree. A manslaughter instruction was warranted. No right has been more zealously protected by this Court than the right of an accused to have the jury instructed on lesser included offenses. Robinson v. State, supra; Canton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972). Assuming that a killing described as manslaughter because of the “extreme emotional distress” is indeed a lesser offense included in first and second degree murder, there is no need in this case to depart from that tradition.

b. The skip rule

A remaining issue is whether the Trial Court’s failure to instruct on manslaughter was prejudicial. As a general rule, when the jury convicts a defendant of first degree murder, even though an instruction on the lesser included offense of second degree murder has been given, any error resulting from the failure to instruct on the still lesser included offense of manslaughter is cured. See, e.g., Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991); Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). This is commonly referred to as “the skip rule.” Whén the jury convicts of a greater offense and “skips” a lesser included offense, there can be no error in failing to instruct on other even lesser included offenses.

Rainey argues the skip rule should only apply when the lesser included offense for which an instruction was denied refers to a mental state one step less culpable than the instructed offenses. In other words, the skip rule only applies when the instructed and non-instructed offenses are described in degrees of culpability, and the lesser are indeed “included” in those for which the punishment is greater.

No doubt we have applied the skip rule when a trial court failed to instruct the jury on manslaughter, and the jury returned a verdict of murder in the first degree, thereby skipping the lesser included offense of murder in the second degree. We have done so without reference to the type of manslaughter instruction involved or the mental state necessary for the offense. See, e.g., Easter v. State, supra; Taylor v. State, supra. Our opinions in those cases, however, do not show that the argument being made here was raised. This is our first opportunity to consider it.

Had Rainey requested an instruction asking the jury to consider whether he was guilty of “recklessly causing the death of another person,” another offense included in the manslaughter statute, we would probably hold that the skip rule applied. That is so because recklessness is a less culpable mental state than purposefulness, and it fits within the chain. It is a truly lesser included offense. His argument is, however, that having requested an instruction based on purposely causing the death of another person “under the influence of extreme emotional disturbance,” the skip rule does not apply. He confesses to having purposely killed the victim, but the manslaughter law, in one of its aspects, adds another element which does not fit in the chain — that of extreme emotional disturbance. One can kill purposely or knowingly, as in first and second degree murders, and yet be guilty only of manslaughter because of extreme emotional disturbance for which there is a reasonable excuse. We agree with this argument.

The rationale given in the cases which developed what we now refer to as “the skip rule” was that no prejudicial error results from failing to instruct the jury on a lesser included offense if the jury found a state of facts to which the instruction would be inapplicable. Farris v. State, 54 Ark. 4, 14, S.W. 924 (1890); Jones v. State, 102 Ark. 195, 143 S.W. 907 (1912); Newsome v. State, 214 Ark. 48, 214 S.W.2d 778 (1948). In other words, even if the lesser included offense instruction had been given, the jury would still have convicted the defendant of the greater offense.

The fact that the jury found Rainey guilty of first degree murder and skipped the lesser included offense of second degree murder does not necessarily mean they found a state of facts to which his requested manslaughter instruction would be inapplicable. Whether we say that manslaughter as defined in § 5-10-104(a)(1) is not a lesser included offense in first and second degree murder because it adds an element or conclude that there is an exception to the skip rule, the result is the same. The evidence before the court entitled Rainey to the manslaughter instruction. The jury could have found that although Rainey purposely killed Kirkpatrick, he did so under the influence of extreme emotional disturbance for which there was a reasonable excuse. The failure to give the jury the opportunity to consider the manslaughter instruction, which we conclude to have been justified by the evidence, was thus prejudicial.

Reversed and remanded.

Brown J., concurs. See Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991).


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Donald Louis BROWN v. STATE of Arkansas
    CR 92-367
    837 S.W.2d 457
    Supreme Court of Arkansas
    Opinion delivered September 21, 1992

      William R. Simpson, Jr., Public Defender by: Bret Qualls, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals from his conviction of burglary and theft of property. He was sentenced as a habitual offender, and he received consecutive sentences totaling thirty-five years. For reversal, he argues (1) that the evidence is insufficient to support his burglary conviction and (2) that the trial court erred in denying his pretrial motion to compel disclosure of a confidential informant. We affirm.

Appellant’s convictions arose out of the burglary of the Crow-Burlingame business. When the police arrived at the crime scene, they discovered that a glass door on the southwest side had been broken with a rock or a brick and the safety glass had been peeled back to gain entry to the building. The owner of the business was called, and he determined that over $2500 in property had been taken from the premises. A fingerprint technician was able to lift two fingerprints from inside the broken glass door where the burglar gained entry. Appellant was a suspect, and he was arrested after his prints matched the fingerprints found inside the glass door.

The state argues that we need not address the appellant’s sufficiency of the evidence question because he failed to renew his motion for a directed verdict at the end of the case as required under A.R.Cr.P. Rule 36.21 (b). The appellant made his directed verdict motion at the end of the state’s case and then rested without presenting any evidence. However, the record reflects that the trial judge specifically stated that the appellant renewed all of his motions and the ruling remained the same. Accordingly, we need not address the state’s argument.

We treat directed verdict motions as challenges to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). This court affirms if there is substantial evidence to support the verdict, and in making this determination we review the evidence in the light most favorable to the appellee. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). The fact that evidence is circumstantial does not render it insubstantial. Conley v. State, 308 Ark. 70, 821 S.W.2d 783 (1992). Where circumstantial evidence is relied upon, however, it must exclude every other reasonable hypothesis but the guilt of the accused. Id.

The state’s case against the appellant was entirely circumstantial, consisting of appellant’s two fingerprints found inside the broken glass door where entry was made into the Crow-Burlingame building. This court has affirmed convictions where the only evidence the state presented against the defendants was their fingerprints found inside the building. See Howard v. State, 286 Ark. 479, 695 S.W.2d 375 (1985) (appellant’s fingerprints were found on the glass rim of a wall inside the store where the robber had vaulted into the office booth); Ebsen v. State, 249 Ark. 477, 459 S.W.2d 548 (1970) (a burglar broke a pharmacy’s plate glass window to gain entry, and appellant’s fingerprints were found on a large piece of broken glass found inside the building). As previously mentioned, the appellant’s fingerprints were located on the inside bottom portion of the broken glass door, where the burglar gained entrance by reaching inside to pull out the glass. Such proof is substantial to show the appellant committed the burglary.

We note that the appellant cites Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984), in his argument that his fingerprints were not sufficient evidence to support his conviction. In Holloway, the appellant’s fingerprints were found on a piece of glass located outside the house where the burglary occurred. Since the appellant’s fingerprints were found inside the CrowBurlingame building, Holloway is clearly distinguishable from the present case.

In the second issue, appellant argues that the trial court erred in denying his pretrial motion to disclose a confidential informant. Under A.R.Cr.P. Rule 17.5(b), disclosure of an informant’s identity is not required where his identity is a prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the defendant. The general rule is that when an informant is also a witness or a participant to the criminal incident, the identity of the informant should be disclosed. James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983). The burden is placed on the defendant to show the existence of any facts or circumstances which would require the identity of the informant. West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973).

Here, the informant did not testify at the trial but played a role in the police investigation of the burglary. During the hearing on the appellant’s motion, the appellant’s attorney told the trial judge that the appellant felt he knew the identity of the informant arid believed that the informant participated in the crime. No evidence was offered to show that the informant participated in the crime. The appellant’s assertion fell short of establishing that the informant was a participant in the crime. Because the appellant failed to present sufficient evidence that the informant participated in the crime, the state’s failure to identify the informant was not prejudicial to the appellant’s defense. See Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988).

For the reasons stated above, we affirm the appellant’s burglary and theft of property convictions.

       Appellant only challenges the sufficiency of the evidence supporting his burglary conviction.


text:
    Betty SPIRES d/b/a Betty’s Liquor and Cynthia Buckwalter d/b/a C & D Grocery v. Walter K. COMPTON, Larkus Pesnell, and Diana Scritchfield, Members of the Election Commission of Union County, Arkansas
    91-320
    837 S.W.2d 459
    Supreme Court of Arkansas
    Opinion delivered September 21, 1992
    [Rehearing denied October 26, 1992.]

      Shackleford, Shackleford, & Phillips, P.A., by: Teresa Wine land, for appellants.

      Tom Wynne, Prosecuting Att’y for Union County, for appellees.
   Tom Glaze, Justice.

The parties in this 1990 local-option election case were previously before us in another appeal. In the first appeal, appellants, liquor store owners, challenged the validity of a local option election held in Union Precinct, alleging that precinct had not been duly established as required under Ark. Code Ann. § 7-5-101 (1987) (now Repl. 1991). The Union County Election Commission certified the election results, reflecting Union Precinct had voted dry. The trial court dismissed appellants’ complaint with prejudice because they had failed to file it within the time required by law. We agreed with the trial court’s decision to dismiss, but did so based upon a different reason — the appellants’ complaint did not state facts upon which relief could be granted. Accordingly, we held the dismissal was without prejudice. Spires v. Members of the Election Comm’n, 302 Ark. 407, 790 S.W.2d 167 (1990).

Appellants subsequently refiled their complaint, again requesting the local-option election results in Union Precinct be set aside, and this time, asked for a jury trial. Appellees responded by stating, among other things, that the appellants had failed to file a timely action challenging the local-option petition and the validity of Union Precinct and its 1990 election results. On April 16, 1991, the trial court issued a letter opinion holding the 1990 local-option election in Union Precinct valid and finding the appellants had a pre-election remedy which they had failed to pursue. That being so, the trial court concluded the appellants also had waived any post-election remedy they may have had.

Before any judgment was filed setting out the trial court’s decision, appellants, on April 26, 1991, filed a motion for a new trial and clarification of the trial court’s letter opinion. On June 7, 1991, the trial court denied appellants’ motion and on June 10, 1991, the trial court’s order dismissing appellants’ complaint was entered. Appellants again filed a new trial motion on June 19, 1991, but the trial court never ruled on this motion. On August 16, 1991, appellants appealed from the trial court’s June 10, 1991 order.

Before reaching appellants’ points for reversal, we first dispose of appellees’ argument that appellants failed to file their notice of appeal in timely fashion. Citing ARCP Rule 59, Ark. R. App. P. 4(c) and this court’s decision in Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991), appellees argue the appellants should have appealed within the thirty days after the trial court denied appellants’ first motion for new trial and clarification of letter opinion. The court’s order denying appellants’ first motion was entered on June 10, 1991, and appellees assert appellants’ time to appeal expired thirty days later at which time the trial court lost jurisdiction in this matter.

Appellee’s argument ignores the fact that, although appellants had filed an earlier new trial motion, on April 26, 1991, the trial court’s actual judgment dismissing appellants’ complaint had not yet been filed, and in fact, the judgment or order was not filed until June 10, 1991. Under ARCP Rule 59, appellants had ten days after entry of judgment to file their motion for new trial, which they did on June 19, 1991. Because the trial court neither denied nor granted appellants’ new trial motion, the motion was deemed denied on July 19, 1991, or thirty days after appellants’ June 19th motion was filed. Appellants then had thirty additional days within which to file their notice of appeal, which they did on August 16, 1991. See Ark. R. App. R. 4(b) and (c). Accordingly, we reject appellees’ argument on this point and hold we have jurisdiction of this matter on appeal.

Appellants argue on appeal that the trial court erred in denying them a jury trial and ruling they had waived their post-election remedies to challenge the Union Precinct election results. Appellants assert the Union County Board of Election Commissioners failed to keep a record or file an order setting out the boundaries of Union Precinct as § 7-5-101 requires, so they claim no valid election was held in that precinct. Appellants further contend that, if they had a pre-election remedy which would correct the Union Precinct boundary problem, they never waived it since they only learned of the boundary problem after the election was held. Appellants claim they are at least entitled to a hearing on the question of waiver because, in these circumstances, a question of fact exists for the factfinder to determine if appellants waived a known right or remedy.

Appellants concede that none of the legal authority they cite regarding the concept of waiver involves election cases. Nor are we ¿ware of any. Waiver is not the decisive issue in this case. The first well-known election law rule applicable to this dispute is that, before an election, the provisions of election laws are mandatory, and after the election, the provisions are merely directory. Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989). In the instant case, the appellants or others could have requested before the election that the Union County Circuit Court mandate the Union County Election Commission to comply with § 7-5-101, by filing the necessary order establishing the Union Precinct boundaries. Because the appellants did not seek to remedy the precinct boundary problem until after the election, the requirement of filing an order describing Union Precinct’s boundaries became directory, not mandatory.’ This important rule helps undergird the stability of elections making it more difficult to set aside an election because of an inadvertent or technical violation of an election law provision.

A voter, candidate or other interested party might still successfully challenge the results of an election after it is held, but that involves another well-settled election rule. In this respect, this court has held many times that elections will not be invalidated for alleged wrongs committed unless those wrongs were such to render the result doubtful. Swanberg, 300 Ark. 304, 778 S.W.2d 931. Put in other terms, we have said that the failure to comply with the letter of the law by election officers, especially in matters over which the voter has no control, and in which no fraud is perpetrated, will not as a general rule render an election void, unless the statute expressly makes it so. In sum, the courts do not favor disfranchising a legal voter because of the misconduct of another person. See Allen v. Rankin, 269 Ark. 517, 602 S.W.2d 673 (1980).

Appellants here request the 1990 election results in Union Precinct to be set aside because the Union County Board of Election Commissioners failed to comply with § 7-5-101. That statute does not make noncompliance with it a reason for voiding an election. Nor do the appellants allege the election officials’ acts of noncompliance with § 7-5-101 was the result of fraud, caused disfranchisement of any voters, or rendered the election results doubtful.

Based upon the parties’ pleadings, stipulations, and the authority cited above, we hold the Union County Board of Election Commissioners’ failure to comply with § 7-5-101 was merely directory when challenged by the appellants. And because appellants failed to otherwise allege facts necessary to contest and void an election once held, as is necessary by law, it is clearly too late for them to do so now. Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967). Although based upon different reasons, we agree with the trial court’s decision, holding the 1988 local-option election in Union Precinct valid. Therefore, we affirm.

       We note that appellants contend they are merely requesting a declaration of the law in this case, but as made evident in their complaint or in oral argument in this appeal, appellants clearly seek setting aside the election results in Union Precinct. Appellants’ action unquestionably contests the results of the 1990 local option and is, in this respect, controlled by Ark. Code Ann. § 3-8-309 (1987).


author: Robert L. Brown, Justice.

text:
    IN RE: APPLICATION for Admission to the Bar of Arkansas OF Mark Ashley CROSSLEY
    92-290
    839 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered September 21, 1992
    [Rehearing denied October 12, 1992.]

      Gibson & Gibson, P.A., by: Bynum Gibson, for appellant Mark Ashley Crossley.

      Hoover, Jacobs & Storey, by: Tucker Raney and Letty C. McAdams, for appellee Board of Law Examiners.
   Robert L. Brown, Justice.

This is an appeal from a decision by the Arkansas Board of Law Examiners denying the request of petitioner Mark Ashley Crossley, who is a licensed pharmacist and a law school graduate who has passed the Arkansas Bar examination, for admission to the Bar of Arkansas. Crossley raises several points which relate to the “moral character” standard set out in Rule XIII of the Rules Governing Admission to the Bar and to the process for deciding bar applications. We affirm the Board’s decision to deny admission to Crossley.

The essential facts are these. Crossley was granted a Pharmacy License by the Arkansas State Board of Pharmacy in 1983. On May 2, 1988, he voluntarily entered a drug treatment program at Sparks Regional Medical Center in Fort Smith, from which he was discharged on May 26, 1988. He surrendered his pharmacy license that same month.

The record reveals that Crossley had a history of abusing alcohol and a variety of illegal drugs dating back to his junior-high-school years and that his problem began to intensify around 1985, when he and his first wife were divorced. Following his divorce, he unintentionally overdosed on drugs twice. According to Crossley, while serving at age 30 as chief pharmacist for the Van Burén County Hospital in Clinton in 1988, he began to use Demerol and morphine, and his use of those substances “got completely out of hand.” His discharge summary from Sparks Regional Medical Center in May 1988 states that Crossley exhibited symptoms of “(1) narcotic dependence (Paradyne) (2) alcohol abuse (3) history of other chemical abuse.”

In June 1988, following his discharge from the treatment center at Sparks, Crossley appeared before the Arkansas State Board of Pharmacy. He did not, at that time, request reinstatement of his pharmacist’s license, and the Pharmacy Board advised him that it would require documentation of his regular attendance at meetings of Narcotics Anonymous and Alcoholics Anonymous before it would consider the question of reinstatement.

On April 1, 1989, Crossley signed a continued-care contract with the Arkansas Pharmacy Support Group. That agreement set forth specific guidelines for his behavior, including abstinence from the use of mood-altering substances, participation in an after-care program for twelve months, monthly random urine screens, attendance at a minimum of two monthly NA/AA meetings, and attendance at quarterly meetings of the Pharmacy Support Group.

In the meantime, Crossley remarried and enrolled in law school at the University of Arkansas at Little Rock. On December 8, 1989, he requested that his pharmacy license be reinstated, pointing to his involvement with the Pharmacy Support Group as evidence of a changed direction. The Pharmacy Board approved the issuance of a temporary intern license, which entailed supervision and required Crossley to attend bi-monthly AA meetings as well as support group meetings.

Thereafter, Crossley continued in the Pharmacy Board’s after-care program and remained subject to random urine screens. He next appeared before the Pharmacy Board on February 13, 1990, and again requested reinstatement of his pharmacy license. The Board gave its conditional assent and restored his license but stipulated that Crossley not work by himself, that he obtain additional continuing education hours, that he appear before the Pharmacy Board in June 1990, that he sign another continued-care contract with the Pharmacy Support Group, and that he follow an after-care program with urine monitoring.

While working as a security guard at a music concert in Little Rock in August 1990, Crossley was offered some cocaine. He used the drug, which was detected in his urine the next week during a random substance test. Despite the positive reading, representatives of Crossley’s support group stated that the relapse was not a significant problem. At the Pharmacy Board meeting held on September 6, 1990, Crossley agreed not to practice pharmacy until he presented himself before the Board at its February 1991 meeting. He also agreed to adhere to the requirements of the Pharmacy Support Group and to make periodic progress reports to the Pharmacy Board’s executive director. Subsequently, during the 1990 Christmas holidays, Crossley took a drink of wine, which was a violation of his contract with the Pharmacy Support Group.

On December 26, 1990, Crossley filed an application for admission to the Arkansas Bar that consisted of a biographical questionnaire. He answered “No” to a query about whether he had ever suffered from or been treated for alcoholism and “Yes” to a question concerning treatment for drug abuse. Responding to a question on the termination or revocation of any other professional license, Crossley wrote: “I surrendered my Pharmacy License in May, 1988. My license was NOT terminated or revoked. I entered a drug treatment program at Sparks Regional Medical Center in Ft. Smith, AR voluntarily.” He affirmed that disciplinary action had been taken against him and explained: “In September, 1990 the Board of Pharmacy requested that I refrain from practicing pharmacy until February, 1991 when I will meet with the Board to review my progress in my recovery program due to a relapse in August, 1990.”

Appearing before the Pharmacy Board on February 14, 1991, Crossley requested that the Board allow him to resume his pharmacy practice. The minutes of the Pharmacy Board reflect that its members and its Executive Director, Dr. Lester Hosto, spoke at length with Crossley about his drug dependency. Crossley was advised that it was necessary for him to write a letter to the Pharmacy Board authorizing it to release his records and other requested information to the Arkansas Board of Law Examiners.

On February 25, 1991, Crossley, having completed law school, signed an acknowledgement which stated is understanding that he was being allowed to take the February 1991 Bar examination, but that “in accord with Rule 13 of the Rules Governing Admission to the Bar, the Arkansas Board of Law Examiners is continuing to investigate by qualifications for certification.” Crossley circled “moral character” as the subject of inquiry. The form also stated that Crossley recognized that the Board of Law Examiners “reserves the right to withhold certification of my application for admission to the Bar of Arkansas in accord with Rule 13 of the Rules Governing Admission to the Bar of Arkansas.” Crossley passed the bar exam.

Crossley’s application for admission to the Bar was reviewed by the chairman of the Board of Law Examiners, who was unable to determine Crossley’s eligibility. Crossley was then informed that he was entitled to request a hearing, and he did so.

A hearing was conduced on June 27, 1991. Crossley, who appeared with his attorney, was questioned by a three-member panel appointed by the chairman of the Board of Law Examiners and by an evidence officer. Other witnesses were called in his behalf. A transcript of the hearing was then prepared and sent to the Board of Law Examiners, who, by a vote of nine to two, determined that Crossley was ineligible for admission. The decision submitted by the Arkansas State Board of Law Examiners on February 17, 1992, contained twenty-one findings of facts and conclusions and included the following: “Insufficient time has passed since the last ‘relapse’ for the Board to favorably consider Mr. Crossley’s application.”

Crossley filed a petition for rehearing or admission to the Bar on March 3, 1992. At a meeting on March 21, 1992, the Board of Law Examiners refused to consider the petition.

Crossley argues that the Law Examiners’ adverse recommendation should not stand because his “conduct does not violate the good moral character definition that should be adopted by this Court for initial applicants to the Bar.” More precisely, Crossley urges that his chemical addiction is a disease which is now under control and which has never led to acts of moral turpitude.

Rule XIII (A) of the Rules Governing Admission to the Bar states in part:

In addition to meeting all other requirements of the rules governing admission to the Bar, every applicant for admission to practice by examination or reciprocity and every applicant for reinstatement of license to practice must be of good moral character and mentally and emotionally stable.

Crossley argues persuasively that he is afflicted by the disease of chemical dependency. The evidence certainly points to that, and we agree with him that addiction to alcohol and drug substances is a disease. Unhappily, though, that conclusion on our part does not decide the matter, for our ultimate purpose in resolving admission questions is to assess an applicant’s fitness to practice law and to protect the public’s interest. See Application of Taylor, 647 P.2d 462 (Or. 1982).

In Arkansas, we review bar admission and reinstatement cases de novo and will not reverse the findings of fact of the Law Examiners unless they are clearly erroneous. In Re Petition for Reinstatement of Lee, 305 Ark. 196, 806 S.W.2d 382 (1991); Scales v. State Board of Law Examiners, 282 Ark. 578, 669 S.W.2d 895 (1984). The applicant has the burden of proving eligibility and must do so by a preponderance of the evidence. In Re Shannon, 274 Ark. 106, 621 S.W.2d 853 (1981).

The test under Rule XIII is that the applicant “be of good moral character and mentally and emotionally stable.” “Good moral character” is a highly subjective term which lends itself to myriad definitions and personal interpretations. As the Arizona Supreme Court observed: “[U]nfortunately for those who would like a black-letter rule, the concept of ‘good moral character’ escapes definition in the abstract. Instead, a particular case must be judged on its own merits, and an ad hoc determination must be made by the court.” Application of Klahr, 433 P.2d 977, 979 (Ariz. 1967); see also Application of Greenberg, 614 P.2d 832 (Ariz. 1980). In the same vein, Supreme Court Justice Felix Frankfurter once remarked on the “shadowy rather than precise bounds” of the concept of “moral character.” Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 249 (1957) (concurring opinion).

The United States Supreme Court also noted in 1957 that the term “good moral character” had been used for many years as a qualification for Bar membership and had been a “useful” tool in that regard. Koningsberg v. State Bar of California, 353 U.S. 252 (1957). “However,” the Court declared, “the term, by itself, is usually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the defined. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.” 353 U.S. at 263.

In Koningsberg, the Court defined moral character as “an absence of proven conduct or acts which have been historically considered as manifestations of ‘moral turpitude.’ ” 353 U.S. at 263; quoted in Reese v. Board of Commissioners of Alabama State Bar, 379 So.2d 564, 569 (Ala. 1980) [law-school applicant prevailed in his application despite his having admitted to DWI and disorderly conduct charges]; In Re Florida Board of Bar Examiners, 373 So.2d 890 (Fla. 1979) [application denied due to applicant’s failure to file federal income tax returns for three years].

Crossley cites us to a recent New Jersey case where the court determined that, despite the applicant’s criminal history from 1969 to 1971 and his 1985 arrest on charges of possession of cocaine and paraphernalia (the charges were subsequently dropped on technicalities), the applicant deserved an opportunity to practice law. Application of Strait, 577 A.2d 149 (N.J. 1990). The court reached this decision by concluding that the record established that Strait had overcome his dependency on drugs and alcohol, that the addiction was the primary source of his problems with the law, and that his chances for sobriety were favorable.

There is no doubt, however, that chemical dependency is a factor to be weighed in assessing fitness to practice law. The Supreme Court of Minnesota has specifically addressed the question of “whether chemical dependency on alcohol is rationally related to fitness for the practice of law such that it can form the basis for preventing an otherwise qualified applicant from gaining admission to the bar.” In Re Haukebo, 352 N.W.2d 752, 755 (Minn. 1984). That court recognized alcoholism as a disease and acknowledged its impact on the practice of law. It concluded that the matter should be remanded to the State Board of Law Examiners for a decision on whether the applicant had rehabilitated himself. In doing so, the court commented on alcoholism:

It is not a mere pattern of voluntary conduct; neither is it an offense which necessarily involves moral turpitude or reflects on the individual’s honesty, fairness, or respect for the rights of others or for the law. It cannot be denied, however, and the Board well knows, that the disease of alcoholism is frequently a contributing factor to acts of attorney misconduct.

Id.

The West Virginia Supreme Court of Appeals made a similar observation in a recent case involving alcoholism, but the court affirmed the State Board’s decision to deny the applicant permission to sit for the bar examination:

[W]e hold that since alcohol dependency can impact on an applicant’s fitness to practice law, it is an appropriate factor to be considered by the Board of Law Examiners in ascertaining whether an applicant has proven good moral character sufficient to demonstrate his fitness and capacity to practice law in this State.

Frasher v. West Virginia Board of Law Examiners, 408 S.E.2d 675, 682 (W. Va. 1991).

In our own cases dealing with petitions for reinstatement to practice law, this court has adopted a case-by-case analysis in dealing with the moral character question. Rather than defining what “good moral character” is, we have cited examples of what it is not. See In Re Petition for Reinstatement of Lee, supra [dishonest receipt of money]; Scales v. State Board of Law Examiners, supra [lawyer repaid only a fraction of the amount he embezzled from a former client]; In Re Shannon, supra [lawyer made only partial restitution to the estate where he embezzled funds]. We have not confronted the issue of whether chemical dependency involving the use of illegal drugs disqualifies one from practicing law. We readily agree, however, that rather than moral turpitude, the issue surrounding chemical dependency is one of fitness to practice law.

In this case, Crossley had two episodes of relapse: the use of cocaine in August 1990, and the use of wine in December 1990. The use of cocaine we deem more significant not only because of its illegal status but also because of Crossley’s attitude towards the relapse as exhibited at the Law Examiners’ hearing:

Examiner: The Cocaine incident at the music festival, did it not cross your mind that you were violating the criminal law of the State of Arkansas being in law school? Was that even a consideration? I don’t know, I’m asking you.
The Witness: I don’t really know how to explain that but no, sir, it did not. It just — it really didn’t.

Perhaps Crossley’s answer shows the extent of his disease, but it seems incredible that when he chose to use cocaine, he was oblivious to the fact that the was engaging in illegal activity.

This case boils down to whether Crossley has rehabilitated himself sufficiently to engage in the practice of law. Again, the burden of proving this falls on Crossley himself, and we cannot say that the Board of Law Examiners was wrong in concluding that he had not met his burden, particularly in light of his August 1990 relapse. Nor can we hold that the Board was clearly erroneous in any of its findings of fact.

Crossley also urges that the Law Examiners erred in refusing to reconsider his application on March 21, 1992. We do not agree. What then must Crossley show to establish rehabilitation? Certainly, an extended passage of time during which sobriety has been attained is a critical factor. At this writing, Crossley has been free of drug usage for slightly more than two years. A requirement that this sobriety be continued for at least another two years is not unreasonable in light of Crossley’s history of drug and alcohol abuse between the ages of thirteen and thirty.

Expert evaluation in support of bar admission is also an important factor as are continued monitoring and support group activity. We note where the Pharmacy Board executive director, Dr. Lester Hosto, testified before the panel at the June 27, 1991 hearing that Crossley’s disease was treatable and that “his ability to practice law would be just as good as his ability to practice pharmacy.” We further note where Dr. Pat Chambers, who treated Crossley at Sparks Regional Medical Center, wrote to the Director of Professional Programs for this court relative to the applicant in February 1991:

As long as Mr. Crossley maintains himself in recovery as outlined above, I believe that his chemical dependency will not impair his ability to competently represent the citizens of Arkansas as a lawyer. However, because this condition is not curable, there is a potential for relapse in the condition from time to time. Therefore, close monitoring of his condition would in my estimation be prudent.

Dr. Chambers’ recommendation of close monitoring would entail continued urinalysis on a regular basis and intensive support group activity with groups like Narcotics Anonymous, Alcoholics Anonymous, and the Pharmacy Support Group. While we do not presume to prejudge a future application by Crossley, these factors are pertinent for consideration by the Board of Law Examiners.

Our position on fitness to practice law is summarized best by language from a decision by the Supreme Court of Oregon:

Applicant has submitted letters from several members of the profession in support of his application. We are also aware of applicant’s academic accomplishments and other positive qualities. He has successfully completed three years of law school and passed the Bar examination. In a case of this sort, however, this court’s primary responsibility is to the public, to see that those who are admitted to the Bar have the sense of ethical responsibility and the maturity of character to withstand the many temptations which they will confront in the practice of law. If we are not convinced that an applicant can withstand these temptations, we would be remiss to admit the applicant. Doubts of consequence must be resolved in favor of the protection of the public. [Citing authority.] In this case, ... we have such doubt.
That is not to say that we shall forever remain unconvinced of reformation. Experience teaches that true reformation does occur. [Citing authority.] With the passage of time, this applicant may mature; his insight may develop; he may be able to show that good moral character requisite to admission to the Bar.

Application of Taylor, supra, 647 P.2d at 467-468; see also Application of Cason, 294 S.E.2d 520 (Ga. 1982).

The denial of the application of Crossley for admission to the Bar is affirmed without prejudice to reapply after a sufficient period of sustained sobriety has passed.

Finally, Crossley, after submission of his appeal and after oral argument of this case, filed a motion requesting that his medical records be sealed and that his identity in this case be anonymous. Historically, we have been loath to entertain motions which directly affect a case after submission except in the most exceptional circumstances. While the subject matter of this case is sensitive, we regard it as not so extraordinary as to warrant the special measures requested. Again, the issues in this case involve the protection of the public interest as well as Crossley’s fitness to practice law. We see nothing to be gained by shrouding his efforts to attain a law license in secrecy.

Affirmed.


author: Per Curiam.

text:
    IN RE: Michael Raymond SALAMO, Arkansas Bar ID # 83151
    841 S.W.2d 589
    Supreme Court of Arkansas
    Opinion delivered September 21, 1992

      James A. Neal, Committee on Professional Conduct, for petitioner.
    Appellee, pro se.
   Per Curiam.

The Supreme Court Committee on Professional Conduct has petitioned this Court alleging that attorney Michael Raymond Salamo, ID #83151, has been disbarred by order of the Circuit Court of Washington County, Arkansas, dated March 11, 1992, for multiple violations of the Code of Professional Responsibility; that no appeal having been taken, said order is now final; that this Court should order the disbarment of Michael Raymond Salamo from the practice of law in Arkansas and direct that his name be removed from the list of attorneys permitted to practice law.

Notice of the petition was given by the Clerk of this Court to Mr. Salamo at 2426 “East” 23rd Street, Brooklyn, New York, 11234 and Mr. Salamo has filed a response admitting that on March 11, 1992, the Honorable Jim Gunter, serving on exchange to the Washington Circuit Court, entered an order finding Michael Salamo guilty of professional misconduct and barring Mr. Salamo from practicing law in the courts of this State.

It appearing that the order of March 11, 1992, is now final, no appeal having been taken, the petition of the Supreme Court Committee on Professional Conduct should be, and the same is hereby, granted.


text:
    MOSLEY MACHINERY COMPANY, INC. v. GRAY SUPPLY COMPANY, et al. and Jimmy Isbell d/b/a Isbell & Son v. Ed Ball Construction Company, Inc., a/k/a Ed Ball Construction Co., Inc., et al.
    91-306 and 91-317
    837 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered September 21, 1992

      Randy P. Murphy, and Dover & Dixon, P.A., by: Philip E. Dixon, for appellants.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Richard N. Watts and Brian Allan Brown, for appellees Gray Supply Company and others.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellees Ed Ball Construction Company, Inc., and others.
   Per Curiam.

In both of these cases the appellees, after prevailing in cases in this court, have asked for an award of attorneys’ fees pursuant to Ark. Code Ann. § 16-22-308 (Supp. 1991). They cite one of our cases, Crisco v. Sun Industries, 304 Ark. 227, 800 S.W.2d 717 (1990), and two court of appeals cases, ERC Mortgage Group, Inc. v. Luper, 33 Ark. App. 9, 799 S.W.2d 571 (1990) and Olaimey v. Turk, 33 Ark. App. 28, 799 S.W.2d 572 (1990), as authority for the award of attorneys’ fees in the appellate court on appeals involving contract cases.

In University Hospital v. Undernher, 307 Ark. 445, 821 S.W.2d 27 (1991), we expressly held that Ark. Code Ann. § 16-22-308 (Supp. 1989) allowed a trial court to assess costs and attorneys’ fees, but the statute was inapplicable to appellate courts. The statute has not been amended since that time. In the case of Crisco v. Sun Industries, 304 Ark. 227, 800 S.W.2d 717 (1990), we approved the award of fees by a trial court in a contract action. We did not discuss the award of attorneys’ fees in an appellate court.

The court of appeals has held that in such cases an appellate court may award attorneys’ fees under Ark. Code Ann. § 16-22-308 (Supp. 1991). ERC Mortgage Group, Inc. v. Luper, 33 Ark. App. 9, 799 S.W.2d 571 (1990) and Olaimey v. Turk, 33 Ark. App. 28, 799 S.W.2d 572 (1990). The court of appeals cases and our case are in direct conflict. We have re-examined the statute and have again concluded that it is not applicable to appellant courts. Thus, we overrule the court of appeals cases to the extent they are in conflict with our interpretation of the statute.

Accordingly, we deny the appellees’ motions for attorneys’ fees in the appellate court in both of these cases.


text:
    Richard PLUGGE, Individually and on Behalf of Arkansas Farm Bureau, Arkansans for Representative Democracy, and All Other Similarly Situated v. W.J. “Bill” McCUEN, Secretary of State
    92-1074
    838 S.W.2d 348
    Supreme Court of Arkansas
    Opinion delivered September 24, 1992

      Friday, Eldredge & Clark, by: Robert S. Shafer and T. Wesley Holmes, for petitioners.
    No response.
   Per Curiam.

Petitioner Richard Plugge, individually, and on behalf of Arkansas Farm Bureau and Arkansans for Representative Democracy, has filed an original action in this court pursuant to Amendment 7 to the Constitution of Arkansas. He seeks to strike a proposed initiated state constitutional amendment entitled “Arkansas Term Limitation Amendment” from the November 3, 1992, general election ballot.

His complaint seeks to strike the proposed amendment on two counts: In the first count he alleges that the respondent Secretary of State has certified the proposed initiated amendment to appear on the general election ballot even though the final number of valid signatures on petitions for the proposed amendment has not been determined. He asks that, when the final number of valid signatures is determined, we grant either of two alternative forms of relief. He first asks that, if the respondent Secretary of State determines that there are not enough valid signatures to submit the proposed amendment to the voters, it be ordered struck from the ballot. Alternatively, he asks that if the respondent Secretary of State determines that there are sufficient signatures, he is entitled to contest the validity of those signatures. If this case reaches that stage, it may become necessary for this court to appoint a master to make findings of fact on each contested signature and then decide the issue. However, at this time this court cannot take any action on this count.

In his second count petitioner alleges that the proposed initiated amendment contains a false and misleading ballot title and therefore must be struck from the ballot. This second count can be decided before the election, and, since the general election is imminent, we order that this count be expedited for trial. The respondent Secretary of State will be given until 5 p.m., Wednesday, September 30, 1992, to file an answer to the second count. Also, any association that may have sponsored the proposed amendment will be allowed to intervene. Simultaneous briefs are ordered filed on those issues raised in this count of petitioners’ complaint by 5 p.m., Wednesday, October 7, 1992, and simultaneous reply briefs are ordered filed by 5 p.m., Friday, October 9, 1992.

The Clerk of this court is directed to immediately notify the parties of this order.


author: Robert H. Dudley, Justice.

text:
    Kent J. RUBENS v. Lilian B. HODGES
    91-206
    837 S.W.2d 465
    Supreme Court of Arkansas
    Opinion delivered September 28, 1992

      Sloan, Rubens & Peoples, by: Kent J. Rubens, for appellant.

      Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Bob R. Brooks, Jr., for appellee.
   Robert H. Dudley, Justice.

Lillian Hodges and Lillian Morris were candidates for Justice of the Peace, District 3, Crittenden County in the November 6, 1990, general election. Lillian Morris died two weeks before the election, but still received seven votes more than Hodges. The Crittenden County Election Commission certified the decedent as the winning candidate. Lillian Hodges apparently realized that when a deceased or disqualified candidate wins an election, the votes received by the deceased or ineligible candidate are not void, but are effectual to prevent the opposing candidate from being chosen. Davis v. Holt, 304 Ark. 619, 804 S.W.2d 362 (1991); see also Annotation, Elections Dead or Disqualified Candidate, 133 A.L.R. 319 (1941); Ark. Code Ann. § 7-5-315 (7) (Supp. 1991), (enacted after this suit arose). Consequently, she filed an election contest.

In her complaint, Hodges alleged that the voters of one ward were entitled to vote on the District 3 position, but that the ballots used in that ward did not allow voters to vote in that particular race. (Subsequent arguments revealed that one of the voting machines in the ward broke down and the rest of the votes were cast with the use of absentee ballots that did not contain this race.) She alleged, “Of the 23 people voting in Precinct 4-3. . .at least 9 wanted to vote for Lillian B. Hodges but were unable to do so since the race was not on their ballot.” In addition, she alleged that the voters in another ward voted with the use of two voting machines and that the District 3 race was not listed on one of the machines. (Subsequent statements to the trial court showed that this ward is divided into two justice of the peace districts, one voting machine contained the race in District 3 and the other machine contained the race in the other district, and the poll workers directed some voters to the wrong machines). She alleged, “Seven voters properly registered in Precinct 5-2 . . . were directed to the voting machine not containing Justice of the Peace District 3 race on it.'These seven voters wanted to vote for Lillian Hodges.” She asked that the total of sixteen votes be counted by the trial court and that she be declared the winner. The contestant attached affidavits of the sixteen people to her complaint.

The complaint named the Crittenden County Board of Election Commissioners as defendants. The election commission answered and said that “representatives for Lillian B. Hodges should be required to respond.” On January 15, 1990, the Crittenden County Quorum Court, by resolution, declared a vacancy in the position since the election commission had certified the decedent as the winner. On February 13, 1991, the contestant, by amending her complaint, asked that the quorum court resolution declaring a vacancy “be set aside and held for naught.”

Contestant Hodges subsequently filed a motion for summary judgment and for a writ of mandamus. On May 24, 1991, the trial court granted summary judgment, and ordered the election commission to certify Lillian B. Hodges as the winner and the Quorum Court to set aside its resolution declaring a vacancy. The election commission appeals from the summary judgment and raises a number of issues. We set out those issues, but do not rule on all of them because issues of material facts remain unresolved. Additionally, the complaint did not state facts sufficient to contest the election and, because this is an election contest, it cannot now be materially amended.

The election commission first argues that the trial court erred in permitting the election contest to be tried without naming a representative of the successful candidate as a party defendant. Clearly, we have said that an election contest is an adversarial proceeding between a successful candidate and an unsuccessful candidate. McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959). However, in this case the prevailing candidate is deceased and cannot personally be made a party. Even so, the governing statute apparently contemplates that the contestant should be able to contest the election. Ark. Code Ann. § 7-5-801 (1987) and see Cain v. Carl-Lee, 171 Ark. 155, 283 S.W. 365 (1926) (where, under a prior but comparable act, we held that an election contest is not abated when the contestee resigns from office). The adverse interest to be represented is neither the civil rights nor the property rights of the deceased, but rather the political rights of the majority of the voters. See Walls v. Brundage, 109 Ark. 250, 160 S.W. 230 (1913) (for discussion of these rights in a different context). The contestant named only the election commission as the party defendant in the original complaint. In an election contest, as distinguished from an action seeking to void an election, we have said the election commission is not the proper party defendant, Henry v. Stuart, 251 Ark. 415, 474 S.W.2d 165 (1971), although it is a proper nominal defendant. The reason is the commission’s function is to promote fair elections, to act in a disinterested manner in disputes between candidates or their representatives, and to take neither side in a contest.

An election contest is a statutory proceeding. Reed v. Baker 254 Ark. 631, 495 S.W.2d 849 (1973). We have said that election contests are special proceedings and are subject to Ark. R. Civ. P. 81, “which exempts from the applicability of the rules ‘those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.’ ” Hanson v. Garland County Election Comm’n, 289 Ark. 367, 712 S.W.2d 288 (1986). There is no statute governing who is the proper party defendant in this particular situation, and while we could determine who the proper party was in order to make the election contest statute have meaning, see Henry v. Stuart, 251 Ark. 415, 474 S.W.2d 165, it is not necessary for us to do so because we reverse for a different reason. While we do not decide the issue, we do invite the General Assembly to determine whether it wishes to enact a statute to govern the procedure for future cases such as this.

The election commission also contends that the trial court erred in the procedure by which it declared Lillian Hodges the winner of the contest. Again, we do not decide the issue, and discuss it only to show that there is a body of law on the subject that was not brought to the attention of either the trial court or this court because the political rights of the majority of the voters were never fully and adequately represented. Lillian Hodges argued that the trial court could count votes for her that were never cast at the election and her argument was based upon an inference, not the holding, in Files v. Hill, 269 Ark. 106, 594 S.W.2d 836 (1980). If this case had been fully contested on an adversarial basis, it might have been developed that we have no statute providing for such a remedy, and in Watson v. Gattis, 188 Ark. 376, 65 S.W.2d 911 (1933), in discussing the language of an earlier, but comparable, constitutional provision, we wrote, “The elector himself would not be permitted to testify that, having failed to vote specifically for any candidate for any particular term, he nevertheless intended that his ballot should express his assent. . . . ’’Many other jurisdictions have addressed the issue, and the general rule is that while the elector may testify that he was wrongfully prevented from voting, and such testimony may be used to void the entire election, the elector may not testify that he intended to vote for a particular candidate. 29 Elections, C.J.S. § 281 (1965).

In Pawlowski v. Thompson, 264 N.W. 722 (S.D. 1936), the plaintiff in a successful election contest introduced evidence that ten wrongfully excluded voters would have voted for him. The court, in reversing the trial court’s decision, said:

We think it clear that they should not now be permitted to come in and say that they were not permitted to vote, but had they been, they would have voted for the plaintiff and thereby change the result of the election as declared by the election board. It is well established that ballots offered but not received cannot be made available for either candidate.

Id. at 724. The court went on to quote Mechem on Public Officers:

A voter who did not vote, though legally entitled to do so, and although he did not vote because he was unlawfully prevented, can not afterwards be permitted to testify that he would have voted for a certain person, notwithstanding that the lawful votes so excluded would, if cast as intended, have changed the result.
The election is to be decided by the number of legal votes actually cast, and not by ascertaining what might have been cast. The election may be held invalid because of the suppression of legal votes, but public policy forbids that, after it is known just how many votes are necessary to change the result, it should be permitted to change it upon the present statement of voters as to their past intentions.

Id. (quoting Floyd R. Mechem, Public Offices and Officers § 237 (1890)).

The leading case on the subject appears to be Pennington v. Hare, 62 N.W. 116 (Minn. 1895), and that court said that to allow the voter to testify as to his intention “would be an uncertain and dangerous experiment.” Id. at 117. The court noted that any attempt to determine the voter’s intent would simply be speculation and could lead to some voters selling their votes to alter the outcome of a close election. Although the court acknowledged the hardship on the individual who loses his vote, the court viewed the individual’s interest to be outweighed by the public interest in avoiding uncertainty in elections. Id.

More recently, the Arizona Court of Appeals addressed the issue and held that “one cannot be allowed to testify as to the candidate for whom he would have voted for the purpose of increasing the votes for that candidate.” Babnew v. Linneman, 740 P.2d 511, 515 (Ariz. Ct. App. 1987). See also Kirby v. Wood, 558 S.W.2d 181 (Ky. Ct. App. 1977), rev’d on other grounds sub nom. Wood v. Kirby, 566 S.W.2d 751 (Ky. 1978); Duncan v. Willis, 302 S.W.2d 627 (Tex. 1957); Whatley v. LaSalle Parish Sch. Bd., 99 So. 603 (La. 1924); Martin v. McGarr, 117 P. 323 (Okla. 1910); Young v. Deming, 33 P. 818 (Utah 1893). Wehave not found any cases to be contrary, although one case, Helm v. State Election Bd., 589 P.2d 224 (Okla. 1979) must be distinguished. In that case the panel on a voting machine was configured so that if the voter pulled the lever for one candidate, a vote was actually cast for another. Under those conditions, the Supreme Court of Oklahoma allowed voters who actually voted in the race to testify for whom they were attempting to vote. Again, however, we do not decide whether the trial court erred in counting votes that were never cast and declaring Lillian Hodges the winner on such a basis; rather, we point out that the majority of voters were never truly represented, and the general rule of law was not brought to the attention of the trial court. Another troubling aspect of this proceeding, which was akin to an ex parte proceeding, is that even if the intent of disfranchised voters can be counted, such votes were not counted for the decedent here.

The election commission also argues that the trial court erred in granting summary judgment and asks us to remand the case and require that someone be appointed to represent the interests of the majority of the voters. We agree that the summary judgment must be reversed, but we dismiss, rather than remand.

The decedent was certified by the election commission as winning by seven votes. In her complaint and motion for summary judgment, the contestant alleged, and attached affidavits to the effect that, of the twenty-three people voting in the ward where absentee ballots were used, at least nine intended to vote for her but were unable to do so. It is obvious that there were fourteen other people who might have intended to vote for the decedent but were unable to do so. Thus, neither the complaint nor the motion alleges or shows that the votes of citizens who were disfranchised in this ward would have changed the result of the election, and such an allegation is necessary. Mason v. Peterson, 238 Ark. 1069, 386 S.W.2d 486 (1965). She additionally alleged that there were seven persons who would have voted for her in the ward in which poll workers referred some voters to the wrong voting machine. However, neither the complaint nor the motion specifies how many other voters were directed to the wrong voting machine that would have voted for the decedent. Thus, the complaint does not contain an allegation, nor do the affidavits attached to the motion for summary judgment show, that if the votes of all the disfranchised citizens were counted the result of the election would have been different. Thus, there remains an issue of material fact, and the summary judgment must be reversed. See Ark. R. Civ. P. 56(c). In addition, the right to contest an election is limited to one who claims to be the rightful winner of the contest. That person must plead that he or she received the majority of the votes. Mason v. Peterson, 238 Ark. 1069, 386 S.W.2d 486 (1965). Because the contestant in her complaint failed to allege facts necessary to contest the election and have herself declared the person with the most votes, it is now too late for her to do so. Spires v. Compton, No. 91-320 (Ark. September 21, 1992). Accordingly, we reverse and dismiss.

Corbin, J., not participating.


author: Robert H. Dudley, Justice. Tom Glaze, Justice.

text:
    William E. SPRADLIN and Republican Party of Arkansas v. ARKANSAS ETHICS COMMISSION, Richar L. Mays, Mary Lynn REESE, Ronald A. May, Kenal Kutait and Mack R. Koonce, In Their Official Capacities as Members of the Arkansas Ethics Commission
    92-371
    837 S.W.2d 463
    Supreme Court of Arkansas
    Opinion delivered September 28, 1992
   Robert H. Dudley, Justice.

The six other members of this court have disqualified from participation in this appeal for separate and valid reasons of their own. The appellants have respectfully suggested that all members of this court might desire to disqualify. See Rule 27 of the Rules of the Supreme Court. I decline to do so on the basis suggested by appellants but, even so, have decided that I ought to disqualify for a different reason.

This appeal involves the appointment of the minor political party representative to the State Ethics Commission. Under the initiated act that created the Ethics Commission, see Ark. Code Ann. § 7-6-217 (Supp. 1991), the Governor, Attorney General, Speaker of the House, President Pro Tempore of the Senate, and the Chief Justice of this court were designated to appoint the five members of the Ethics Commission. Appellants contend Chief Justice Holt was designated to make the appointment of the minor political party representative to the Commission, that he made an inappropriate appointment, and that the appointment should be set aside. The suggestion of disqualification indicates that the Chief Justice made the appointment with the approval of the court. The suggestion is based upon the false assumption that the court acted in the matter. Plainly stated, the court did not act in this matter, and I do not disqualify on that basis. Still, I feel that I should disqualify from this case for a reason other than the one suggested. Accordingly, I too will disqualify upon certifying to the Governor in accordance with Articles 7 and 9 of the Constitution of Arkansas that the Chief Justice and all of the Associate Justices have disqualified.

Tom Glaze, Justice.

Appellants suggest the Chief Justice’s appointment of Mr. Ronald A. May to the State Ethics Commission was approved by the associate justices on this court. Speaking for myself, I was never asked, nor did I offer, to approve such an appointment.

Customarily and traditionally, justices for good reasons do not announce why they recuse in cases. However, because I recuse for a reason other than the one suggested by appellants in their motion, I set out a limited explanation for recusing in this particular case. I have known Mr. May since 1965 when I then worked for Mr. Winthrop Rockefeller. My contact with, and knowledge of, Mr. May has been limited, but significant enough over the years to prevent me, under the terms set out in Cannon 3 (C)(1), from deciding the primary issue presented in this appeal. Accordingly, for reasons other than the one suggested by appellants, I recuse from this case.


author: Steele Hays, Justice.

text:
    Eddie DIXON, Jr. v. STATE of Arkansas
    CR 92-165
    839 S.W.2d 173
    Supreme Court of Arkansas
    Opinion delivered September 28, 1992

      Wayne Emmons, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Eddie Dixon and Tony Evans were charged as principals or in complicity with each other with two counts of delivery of a controlled substance - cocaine. Dixon’s motion to sever was granted and he was tried separately from Evans. The state’s evidence consisted essentially of the following:

On February 9, 1991, undercover officers Darryl Scrivens and Bobby Allison drove to a certain location in Blytheville. Allison was wearing a concealed microphone. Tony Evans approached the vehicle and sold one rock of crack cocaine to the officers. They asked to buy a larger quantity of cocaine and Evans said he would have to get someone else to provide a larger amount. He left to contact his supplier. Moments later, a white Chevy Blazer arrived at the scene and parked some distance from the undercover officers. The Blazer had one occupant in addition to the driver. The officers watched as Evans went to the passenger side of the car, obtained a plastic bag containing fifteen rocks of cocaine and brought it to the undercover officers. They gave $250 to Evans which he took to the person in the Blazer, allegedly appellant, who then left the area.

Officer Darryl Scrivens testified that he had previously seen the passenger in the Blazer and had a photograph of him which had been provided to him at the start of the operation. Scrivens stated that he went back to his meeting area and picked out the picture of the appellant as the person that had provided the cocaine for the transaction.

A jury trial was held on September 25 and 26, 1991. The jury found Dixon guilty of one count of delivery of a controlled substance, cocaine, and imposed a fine of $25,000 and a life sentence in the Arkansas Department of Correction. Dixon appeals from the judgment of conviction asserting six points for reversal. Finding no error, we affirm the judgment entered pursuant to the verdict.

I

THE TRIAL COURT ERRED IN PERMITTING THE CO-CONSPIRATOR’S STATEMENTS TO BE ADMITTED INTO EVIDENCE.

Appellant contends initially that the trial court erred in permitting the statements of the co-conspirator to be admitted into evidence. Prior to trial, appellant moved to suppress the statements which accomplice Tony Evans made to the undercover officers and which were recorded on the microphone worn by Allison. Appellant contends the statements, which implicated Eddie Dixon, were hearsay and were not statements of a co-conspirator in that they were not made during the course of and in furtherance of a conspiracy. After opening statements, the trial court ruled that it would conditionally admit the statements of the co-conspirator and at the close of the state’s case as well as at the close of the evidence, would consider whether prima facie evidence of a conspiracy had been presented.

During the testimony of Darryl Scrivens, the state asked whether Evans had mentioned a name when he was asked about the purchase of an 8-ball of cocaine. Appellant objected on lack of proof of a conspiracy. The court overruled the objection and permitted the question to be answered conditionally upon the state later proving the conspiracy independent of the testimony.

A tape recording of the conversation between Scrivens and Evans was played for the jury. The actual tape is in the record, but it was not transcribed or abstracted. Officer Scrivens did state part of the conversation with Evans during his testimony. Scrivens testified that Evans had said “Eddie has the best thing going” and that, “Eddie didn’t have powder.” Evans also said that Eddie was “legit”. After the appellant made a motion for a directed verdict at the close of the state’s case, the court made a finding that sufficient evidence existed to make a fact issue for the jury on the existence of a conspiracy independent of the conspiratorial statements made by Evans.

First, appellant contends that the trial court erred in not making a definitive ruling regarding the admissibility of the co-conspirator’s statements. The appellant relies on United States v. Offutt, 736 F.2d 1199, 1200 (8th Cir. 1984) in which the Eighth Circuit stated that a trial court may conditionally admit a statement of an alleged co-conspirator and the government must then prove by a preponderance of the independent evidence that the statement was made by a co-conspirator during the course of and in furtherance of the conspiracy. Further, at the close of all the evidence, the district court should make an explicit finding for the record regarding the admissibility of the statement. But in Offutt, the government was charging an express conspiracy by a number of individuals to import drugs into Arkansas from Florida over a period of days. Here, the entire enterprise required only a matter of minutes and, except for the telephone call, occurred in its entirety in plain view of the undercover officers. In that context the trial court was fully justified in concluding that there was sufficient proof that Evans and Dixon were acting in concert. Under our cases the sufficiency of the evidence of a conspiracy so as to permit the statements of a co-conspirator is ordinarily decided by the trial court. Jackson v. State, 267 Ark. 891, 591 S.W.2d 685 (1980); Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978); Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972); Bosnick v. State, 248 Ark. 846, 454 S.W.2d 311 (1970). However, no prejudice resulted in the submission of that issue to the jury. Easter v. State, 306 Ark. 615, 816 S.W.2d 615 (1991); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

Appellant also contends that the co-conspirator’s statements were inadmissible in that they were not made in the furtherance of a conspiracy. He argues that the taped statement of Tony Evans might possibly show a delivery or sale of cocaine but did not show that a conspiracy existed.

Ark. R. Evid. 801 (d) (2)(v) provides that a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy is not hearsay. See also Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978); Lopez v. State, 29 Ark. App. 145, 778 S.W.2d 641 (1989); Mock v. State, 20 Ark. App. 117, 725 S.W.2d 1 (1987); Sweat v. State, 5 Ark. App. 284, 635 S.W.2d 296 (1982).

Evans’s statements were clearly within the scope of Rule 801. They were made during the course of the criminal conduct, which occurred within a brief interval in time, they were designed to further the specific objective of such conduct, i.e., a purchase by the officers of some fifteen rocks of crack cocaine. Evans was both promoting the product of his confederate and abetting a completion of the sale. The trial court did not err in admitting the statements in evidence.

II

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR A MISTRIAL

Appellant contends the trial court erred in denying his motion for a mistrial prompted by the state’s opening statement. The prosecuting attorney remarked that there was a problem with street dealers in Blytheville. Appellant objected and the objection was sustained. Further on, the prosecuting attorney described the area where the officers went as “an open air drug market.” Appellant’s objection to that remark was also sustained. After defense counsel completed his opening statement, he moved for a mistrial on the ground the state had improperly referred to the statements of the accomplice as well as Blytheville’s drug trafficking problems and the open air drug market. The trial court denied the motion for a mistrial and appellant renews the argument on appeal. He insists the statements were prejudicial in that they characterized the appellant as a street dealer and in an open air drug market and even though the objections were sustained, the damage had been done.

First, the motion was not timely. Appellant waited until after he had completed his opening statement before requesting a mistrial. In Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986), this court noted that it was proper to deny a motion for a mistrial when the request was not made at the first opportunity.

Second, because both of appellant’s objections during the state’s opening statement were sustained, he had received all the relief requested at that time. One cannot complain about a favorable ruling granting all relief requested. Sweat v. State, 307 Ark. 406, 820 S.W.2d 459 (1991); Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990).

Further, the prosecutor merely referred to matters which were developed by the evidence during the trial. Where evidence is admissible, a party is entitled to refer to it during opening statement. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). Also, a prosecutor is allowed to argue any inference reasonably and legitimately deducible from the evidence. Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982). At trial, the jury heard evidence of the co-conspirator’s statements and the identification of the appellant. The testimony also described various purchases of drugs near the area that this transaction took place. Given this evidence, the jury could have concluded that there was a drug problem in the Blytheville area. We have frequently held that a mistrial is an extreme remedy that should be granted only where an error is so prejudicial that justice cannot be served by a continuation of the trial. Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992); Smith v. State, 308 Ark. 603, 826 S.W.2d 256 (1992); Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990). The decision whether to grant a new trial is left to the sound discretion of the trial judge and will not be reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party. King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). Under the circumstances, the trial court did not abuse its discretion in denying appellant’s motion for a mistrial.

III

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO OFFICER DARRYL SCRIVENS’ IN-COURT IDENTIFICATION OF APPELLANT

Appellant next contends the trial court erred in allowing Officer Scrivens to make an in-court identification of appellant. He argues that the identification was tainted by a prior viewing of photographs and by the statements of the accomplice.

Before trial, Officer Scrivens testified that after he made the cocaine purchase from Tony Evans and appellant on February 9, he went back to a meeting place and shuffled through a stack of pictures that he was given at the beginning of the operation. Scrivens said he picked out the appellant’s picture from the stack. The trial court noted for the record there were twenty-seven individuals depicted in the pictures and the pictures were not particularly suggestive. The prosecuting attorney noted that all were rather young in age. Defense counsel agreed and noted his continuing objection to the identification procedure.

At trial, Officer Scrivens testified that he was approximately fifteen to thirty feet from the Chevy Blazer in which appellant was seated during the drug transaction. He noted that a conversational exchange obviously took place between Evans and appellant and that Scrivens received a bag from Evans which Evans had received from appellant. In addition to the several references to Eddie, Scrivens testified that as he was talking into the mike, he described appellant as a light-skinned male with a goatee in his mid-twenties or early thirties. Scrivens said he had seen appellant on at least two or three prior occasions while in the area.

Sergeant Robert Tunson testified that Scrivens had given a description of the passenger in the Blazer and that when all parties returned to their meeting point approximately fifteen minutes later, Scrivens positively identified the passenger as Eddie Dixon. Agent Wade Krieger testified that Officer Scrivens viewed photographs of twenty-seven individuals at the meeting place and had no difficulty identifying the passenger as Eddie Dixon.

We will not reverse a trial court’s ruling on the admissibility of an in-court identification unless that ruling is clearly erroneous under the totality of the circumstances. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). In making that determination, we first look at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect. Maulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988). It is the appellant’s burden to show that the pretrial identification procedure was suspect. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). Reliability is the linchpin in determining the admissibility of identification testimony. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). The factors in measuring reliability are the opportunity of the identifying witness to observe the accused at the time of the criminal act, the lapse of time between the occurrence and the identification, any inconsistencies in the description given by the witness, whether there was prior misidentification, the facts surrounding the identification, and all other matters relating to the identification process. Spivey v. State, 299 Ark. 412, 77 S.W.2d 446 (1989); Robinson v. State, 293 Ark. 228, 737 S.W.2d 150 (1987).

On that basis, we conclude the pretrial identification procedure was not unnecessarily suggestive. In fact, the appellant failed to include the photographs at issue in the record. It is well settled that an appellant must bring up a record sufficient to show the trial court was wrong. Drone v. State, 303 Ark. 607, 798 S.W.2d 434 (1990).

IV

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO THE TESTIMONY OF LINDA BURDICK

Fourth, appellant argues the trial court erred in overruling his objection to the testimony of Linda Burdick, a forensic chemist who testified on behalf of the state. Appellant argues that Ms. Burdick did not have the expert knowledge to testify on the subject matter and her testimony was prejudicial.

Ms. Burdick testified regarding her analysis of the controlled substance which was forwarded to her for examination. She testified, without objection, that cocaine was a schedule II narcotic drug and that there were six schedules of controlled substances. When she was asked to give an example of what a schedule six controlled substance was, appellant objected based on relevancy. His objection was sustained. When Burdick was asked why something was put in schedule II, appellant again objected on the basis of relevancy. The court overruled the objection and permitted her to testify that it was something that had an addictive quality to it.

At trial, appellant objected to the testimony only on the basis of relevancy. Now, on appeal, he contends that Ms. Burdick was not qualified to explain as to why cocaine was classified as a schedule II controlled substance. It is well settled that a party cannot change the grounds for objection on appeal. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). See also Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991). In order to preserve an issue for appeal, that issue must be stated clearly and specifically. Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990).

V

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR A DIRECTED VERDICT

Appellant moved for a directed verdict at the close of the state’s case and-rested without putting on any evidence. The motion for a directed verdict was denied. He urges the evidence was not sufficient to support his conviction for delivery of cocaine. Appellant challenges the sufficiency of the evidence on three grounds. First, he contends there was no conspiracy proved between appellant and Evans. Second, he argues there was no reliable identification of appellant as one of the individuals involved in the transaction. Third, he claims there was an insufficient chain of custody regarding the cocaine.

When the sufficiency of the evidence is challenged on appeal, the evidence is reviewed in the light most favorable to the appellee, considering only the evidence that tends to support the verdict of guilt. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990) . Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991) . This court affirms if there is substantial evidence to support a conviction. Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1992).

Appellant’s first argument regarding proof of a conspiracy was addressed under Point I. As stated above, the trial court found that there was sufficient evidence to make a fact issue for the jury on the existence of a conspiracy. The statements made by Tony Evans and the testimony of Darryl Scrivens and the other officers provide sufficient evidence to support the conclusion that the appellant and Evans delivered cocaine to Agent Scrivens and received money in return.

Appellant’s second argument regarding the identification of the appellant by Officer Scrivens was addressed in Point III above. Officer Scrivens’ description of the pretrial identification procedure did not prove to be suggestive and he was able to positively identify the appellant at trial. This court stated in Walker v. State, 287 Ark. 76, 696 S.W.2d 500 (1985), that the credibility of the identification testimony was for the jury to decide.

Appellant’s third argument concerns the chain of custody of the cocaine. At the conclusion of Linda Burdick’s testimony, the state offered into evidence the package of cocaine as State’s Exhibit #1. Defense counsel stated he did not mind allowing the exhibit for identification but would like to point out some objections to it later. The trial court received the bag into evidence with the removal of the tag containing other information and the prosecutor’s request to hand it to the jury was granted.

The appellant did not make his objection to the chain of custody until he moved for a directed verdict at the close of the state’s case. The trial court noted that there was no real question raised as to the chain of evidence or that the crack cocaine delivered to Officer Scrivens was not that analyzed by the Crime Lab as to whether it was one and the same material. Although the trial court agreed to let appellant state his objections at a later time, he should have made the chain of custody argument at the time the exhibit was admitted. Because appellant waited too late to make his chain of custody argument, that point is not preserved for appellate review. See Gonzalez v. State, 306 Ark. 1, 811 S.W.2d 760 (1991); Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).

On the merits, the chain of custody with respect to State’s Exhibit #1 was sufficiently established. It is only necessary for the trial judge, in his discretion, to be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. See Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989).

At trial, Scrivens testified that he received a plastic bag from Tony Evans which Evans had retrieved from appellant. He said the bag contained fifteen rocks of crack copaine. Sergeant Robert Tunson noted that the package had been sent off to the crime lab, but that, as far as he knew, the lab was unable to lift any prints from it. Linda Burdick testified that she received a certified mail package bearing the number 593668973 from the Air Force Office of Special Investigations on February 13. She noted that the plastic bag she received contained fifteen plastic sandwich bag corners and that each of those plastic sandwich bag corners contained a piece of a hard white rock-like substance which tested to be 92% cocaine base. She also noted that the evidence tag attached to it bore her signature. Given this testimony at trial, the trial court did not abuse its discretion in finding that Exhibit #1 was the same cocaine as that delivered by the appellant and allowing the exhibit to be admitted into evidence. Therefore, appellant’s motion for a directed verdict was properly denied.

VI

THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST TO HAVE THE JURY VIEW APPELLANT SEATED IN A VEHICLE

Finally, appellant contends the trial court erred in denying his request to have the jury view appellant while seated in a vehicle. At the close of the state’s case, appellant asked the trial court to permit the jury to view the Chevy Blazer with the appellant seated in the passenger seat to assess the capability of Officer Scrivens to observe the transaction. The state objected. The court ruled that it would allow the jury to view the vehicle but would not allow a viewing of the vehicle with the appellant seated in it. The defense then withdrew its request.

A request to view a place pertinent to a material fact is a matter within the trial court’s discretion and denial of the request is not a ground for reversal absent an abuse of that discretion. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986); Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984). Also, it is within the sound discretion of the trial court to grant or refuse permission during trial to either party to conduct an experiment or test in the presence of the jury. Gonzalez v. State, 301 Ark. 98, 782 S.W.2d 359 (1990).

The trial judge did not abuse his discretion in refusing to allow the appellant to, in essence, reenact the crime scene. It would have been very difficult to recreate the crime scene in a manner that would have placed the jurors in the same position as Officer Scrivens when he identified the appellant. Therefore, the trial court was correct in denying appellant’s request.

The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


text:
    Harold Bruce HOLLOWAY v. STATE of Arkansas
    CR 91-142
    837 S.W.2d 464
    Supreme Court of Arkansas
    Opinion delivered September 28, 1992

      Bynum & Kizer, by: Maxie G. Kizer, for appellant.

      Winston Bryant, Att’y Gen., by: Clementine Infante, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Harold Bruce Holloway, while incarcerated in the Arkansas Department of Correction, was charged with first degree murder arising from the death of another inmate. Holloway pled not guilty, was tried by jury, convicted and sentenced to a term of forty years. Holloway served as his own trial counsel, with a court appointed attorney serving as “standby.”

Holloway appealed from the judgment of conviction but appointed counsel filed a no merit brief pursuant to Ark. Sup. Ct. R. 11(h) and Anders v. California, 386 U.S. 738 (1967). The Attorney General concurred in the no merit appeal and Holloway then filed a pro se brief urging a single point of error: the trial court abused its discretion in denying his motion for a continuance. Appellant argues the prosecuting attorney withheld all evidence he intended to introduce until the day of trial and the trial court did not allow appellant time to review the evidence. For the reasons stated hereafter we reject the argument and affirm the judgment.

Over some period of time continuing animosity developed between Holloway and another inmate, Lonnie Oliver, and Holloway maintained Oliver had threatened him. Holloway made several requests to be separated from Oliver but no action had been taken. On July 22, 1990, Oliver and Holloway were taken from the cell block to the recreation yard. Both were handcuffed with their hands behind their back. According to Holloway’s later statement, he was able to free one of his hands and stab Oliver with a knife fashioned from a piece of metal. Holloway maintains that he acted to protect himself from Oliver and though he did not testify or call witnesses, he told the jury in closing that he stabbed Oliver but did not intend to kill him. Officer Curtis McDaniel gave this account of the incident:

I noticed Inmate Holloway moving his arms as if he were trying to get out of his cuffs. Inmate Holloway did slip the cuffs and turned and hit inmate Oliver in the back. At this time, Inmate Holloway turned and ran back toward the cell blocks. This is when I noticed Inmate Holloway with the knife. I gave Inmate Holloway several direct orders to drop it, but the inmate failed to comply with my orders. Holloway stabbed Oliver several more times, and at my last order, Inmate Holloway got off the inmate that he was attacking, turned and told me to get the door opened so that he could go to his cell.

Holloway points out that he requested discovery more than three months prior to trial and the state failed to respond until the trial was actually in progress so that he only became aware of the evidence as it was being introduced. The record reflects that Holloway moved for discovery on August 22, 1990, followed by a motion to compel discovery on October 11 after the state failed to respond. Then, on November 20, Holloway moved for a continuance.

There are a number of problems confronting the appellant’s theory of reversible error. For one thing we find no ruling by the trial court with respect to the motion for a continuance. Appellant argues a continuance was denied on the day of trial at an in-chambers hearing. But it is appellant’s burden to produce a record of the trial proceedings, and this record is silent. Nor did appellant make timely objection contemporaneously with the introduction of the state’s evidence. Not until the state had rested its case in chief did appellant renew his motion for a continuance which the trial court denied because no grounds were stated. More important, appellant has failed to demonstrate any prejudice. Appellant was entitled to the names and addresses of the state’s witnesses, but not, as he assumes, the substance of their testimony. Ark. R. Crim. P. 17.1(a)(1).

We judge the denial of a continuance on the merits of each particular case, recognizing that no two cases are alike. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). We cannot say in this instance the trial court’s discretion was abused.

Affirmed.