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    Eugene Wallace PERRY v. STATE of Arkansas
    CR 82-19
    642 S.W.2d 865
    Supreme Court of Arkansas
    Opinion delivered November 15, 1982
    [Rehearing denied January 10, 1983.]

      Ronald D. Harrison of Harrison ir Hewett, and Stephen M. Sharum, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The appellant was tried in Sebastian County, Arkansas, upon change of venue from Crawford County. He was convicted of capital felony murder and sentenced to death by electrocution. The appellant argues 21 points for reversal in this appeal. We will discuss each of them in the body of this opinion. We do not find any of the points argued to constitute prejudicial and reversible error.

Kenneth Staton and his daughter, Suzanne Staton Ware, were murdered during the course of a robbery of their jewelry store on September 10,1980. On September 26,1980, the state filed an information against Damon Peterson, a/k/a Damon Malantino, and Richard Phillip Anderson charging them with capital felony murder. The appellant was arrested in Jacksonville, Florida, on an unrelated crime. While the appellant was still imprisoned in Jacksonville, Florida, he filed a demand for a speedy trial on the Arkansas charge and was returned to Crawford County shortly thereafter. At the time of his arraignment the information was amended to show his name as Eugene Wallace Perry, a/k/a Damon Peterson, a/k/a Damon Malantino. Trial counsel was appointed for the appellant. Upon motion the appellant was granted a change of venue from Crawford County to Sebastian County, Fort Smith District.

A photo line-up, consisting of six photographs, was displayed by investigating officers to several witnesses, some of whom identified the appellant from the photos. Appellant’s photograph irr the line-up was one from the waist up showing him to be in a hospital bed. The other pictures were all mug shots having solid backgrounds. Upon request of the appellant a line-up was conducted and viewed by five witnesses, all of whom identified the appellant. Counsel for appellant actively supervised the line-up and positioned the appellant in the number two position. Further details of the identification process will be described in the discussion of the points argued on appeal.

All of the evidence was circumstantial. Photographs were introduced showing the bodies of the decedents on the floor of the jewelry store. They were bound and gagged and each had been shot twice in the head. A considerable amount of blood was shown in the photographs. Also, several tags which were allegedly taken from items of jewelry in the store were introduced. These tags were obtained from a camp site on Beaver Lake and from a storage room in Fayetteville. Ruby Godwin was the only witness who placed the appellant in Van Burén on the date of the robbery. Other witnesses testified they observed the appellant, either before or after the date of the crime, at Beaver Lake, in Van Burén and Fort Smith as well as in Fayetteville.

I. THE COURT ERRED IN REFUSING A REQUEST FOR A SECOND CHANGE OF VENUE.

The appellant filed a timely motion for a second change of venue in which he insisted that the trial be removed from the Twelfth Judicial District to some place outside the primary news coverage of Fort Smith and Van Burén. The court could have granted a change of venue to any county adjacent to Crawford County, either inside or outside of the Twelfth Judicial District. Cockrell v. Dobbs, Judge, 238 Ark. 348, 381 S.W.2d 756 (1964). However, there was no request by the appellant for a change to any specific county other than Sebastian. In any event, the matter is without merit because the record clearly shows that the jury selected was unbiased. A change of venue lies within the discretion of the trial court. If the court determines that the appellant can receive a fair trial by an impartial jury, there is no prejudice regardless of the location of the trial. Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982). An examination of the record in this case reveals that each of the jurors stated they could give the appellant a fair trial and that they would be guided by the instructions of the trial court. Therefore, we do not find that under these circumstances the trial court abused its discretion.

II. THE COURT ERRED IN DENYING APPELLANT’S REQUEST FOR A HANDWRITING EXPERT AT STATE EXPENSE.

Again, this is a matter that lies within the discretion of the trial court. Ruiz and Van Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979). The record indicates that certain writings were used for the purpose of showing that the appellant had used the name of Damon Peterson while he was in the Crawford County area. There was no attempt made to show that the writing on any particular items in evidence was actually the handwriting of the appellant. We have held that it is a matter within the discretion of the trial court in refusing to provide a defendant with an unnamed expert to rebut the state’s expert testimony evidence. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982). In the present case the state did not use expert testimony to establish the handwriting as that of appellant. The appellant was linked to these items of evidence by identification testimony only. Several other witnesses identified the appellant as one known as Damon Peterson while he was in the area. Testimony concerning the evidence purportedly bearing the signature of Damon Peterson was received without objection thus this issue is precluded from review on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Under the facts presented under this argument we do not find that the trial court abused its discretion.

III. THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS IDENTIFICATION TESTIMONY.

We agree with appellant’s argument that the state may not use in-court testimony and identification by witnesses whose testimony has been tainted by unconstitutionally conducted or impermissibly suggestive procedures. Sims v. State, 258 Ark. 940, 530 S.W.2d 182 (1975). We have held that the judge must look to the totality of the circumstances in such cases to determine if there is a likelihood of misidentification. James & Elliott v. State, 270 Ark. 596, 605 S.W.2d 448 (1980). Reliability of evidence is the linchpin in determining its admissibility. Manson v. Brathwaite, 432 U.S. 98 (1977), and Matthews v. State, 275 Ark. 1, 627 S.W.2d 20 (1982). We reverse the trial judge in such matters only if we find it was clearly erroneous. Beed v. State, 271 Ark. 529, 609 S.W.2d 898 (1980). Reliability of eye witness identification is normally a question for the jury, however, fundamental fairness of identification procedures addresses itself to the trial court as a matter of law under Beed.

Several witnesses testified at the suppression hearing concerning the photographic and physical line-ups which were considered by the various witnesses. Witness Jeffcoat testified that the appellant had a blond, frizzy-headed look with black eyebrows and a black mustache. After viewing the physical line-up and picking out appellant, the witness stated to the prosecutor that he hoped he had selected the right person and the prosecutor allegedly stated that he believed Jeffcoat had picked the right man. It was improper for the prosecutor to make such a statement but it was made after the witness had identified the appellant. Therefore, the error is not prejudicial in this case. From the facts it does not appear that the line-up was used to crystallize this witness’s memory so that he could later be used to make an in-court identification. Another witness, the widow of one of the victims, picked the appellant from the physical line-up because she believed he was one of two persons who was in their jewelry store a few days before the murder. All of the witnesses to the physical line-up were apparently kept in one room prior to viewing the line-up. The evidence indicates that the witnesses did not discuss the matter of identifying anyone in the line-up, however, it still would have been a better practice to separate the witnesses prior to viewing the line-up.

It is true some of the witnesses’ testimony was vague and general in nature. However, this is a matter which addresses itself to the jury.

Witness Linda Godwin testified at the suppression hearing. She was unable to identify the appellant in the photographic line-up. She expressed some reservations about her identification of the appellant in the physical line-up. She further stated that she had seen appellant’s picture in the newspaper before viewing the line-up. She could not remember whether the appellant had a mustache but she did remember he had a beard. This was in direct contradiction with descriptions other witnesses had given about the appellant.

Witness Parr identified the appellant in the photo show-up. He did not hedge on his testimony and was very positive in his identification of the appellant as the man who had been in his store for about 15 minutes during the first part of September 1980. Parr also testified that the men he saw in his store, which is located near the store which was robbed, were in their mid-20s and slim but not skinny and about 5' 10" tall. His testimony at the trial was essentially the same. His testimony was to the effect that the dark haired man (appellant) did not have a mustache. His description was, to say the least, not identical with that of any other witness.

Witness Carson testified at the suppression hearing. He testified that he recognized the appellant in the photographic line-up arid that it appeared the man had lost 26 pounds since he observed him nine or ten months prior to the suppression hearing. Also, he had observed appellant’s picture in a newspaper.

Gilford Heckathorn did not participate in the line-up procedure or testify at the suppression hearing. Heckathorn claimed to have rented a storage building to the appellant for storing a motorcycle and other items. At the trial he positively identified an alternate juror as the man to whom he rented the building. There was no objection to this testimony or to that of Grant Cummins and we will not dwell upon their testimony as any error has been waived. Grant Cummins’ testimony was most positive at the trial, but it was later revealed that he examined the photographic line-up at the request of the prosecuting attorney during a break in the trial while the appellant was still seated at the counsel table in view of the witness. This was highly improper on the part of the prosecuting attorney but the witness’s testimony was introduced without objection. As to the photo identification, it appears that witnesses Ginn, Etier, Carson, Parr and Jeffcoat identified the appellant and witnesses Godwin and Staton were unable to do so.

It must be kept in mind that the appellant apparently changed his outward appearance often. He appeared as a curly haired blond and as a light colored long-haired individual, as well as having straight dark hair in the physical line-up. However, it appears that his eyebrows were always dark and when he had a mustache it was dark. The various witnesses observed the appellant at different times and he may well have appeared somewhat different to each of them. On the other hand, it is not unusual for several witnesses to view the same individual at the same time and come up with different descriptions. An accused is not entitled to have a line-up in which all the participants are identical. Sometimes the accused may even have a distinctive appearance which none of the other participants possess. McCraw v. State, 262 Ark. 707, 561 S.W.2d 71 (1978); James & Elliott v. State, supra. Generally speaking, the reliability of identification testimony can adequately be tested on cross-examination. Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982). We held in Sims v. State, 258 Ark. 940, 530 S.W.2d 182 (1975):

... before an error of constitutional proportions may be considered harmless, it must be harmless beyond a reasonable doubt, and we must be able to say that untainted evidence of the defendant’s guilt was overwhelming before we can even consider whether the error is harmless.

Also see Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975). The rule as established in United States v. Wade, 388 U.S. 218 (1967), and followed by this court in Montgomery v. State, 251 Ark. 645, 473 S.W.2d 885 (1971), is that when a line-up is conducted for the purpose of crystallizing a witness’s identification without the presence of the accused’s counsel, the state must establish by clear and convincing evidence that the subsequent courtroom identification by a witness who identified the accused in such a line-up was based upon independent observation rather than upon the constitutionally infirm line-up procedure. Although the evidence against the appellant in this case is all circumstantial, it is by no means all dependent upon the identification testimony of any particular witness. We have held that in-court identification can be held inadmissible as a matter of law only if, after viewing the totality of the circumstances, it can be said that the identification was patently unreliable. McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7 (1980); and Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978). Finally, we state that while some of the witnesses’ testimony conflicted with that of other witnesses, the testimony was still admissible and its credibility was a matter for the jury. Therefore, we do not find that the court abused its discretion in allowing the testimony as it related to the photographic and physical line-up identification process.

IV. THE SUFFICIENCY OF THE EVIDENCE.

The appellant argues that since the evidence was all circumstantial, it did not rise to the level of proof required for conviction. The appellant correctly relied on Ayers v. State, 247 Ark. 174, 444 S.W.2d 695 (1969), for the proposition that when evidence is all of a circumstantial nature, every other reasonable hypothesis but the guilt of the accused must be ruled out. In determining the sufficiency of evidence to uphold a conviction we affirm if there is substantial evidence to support the jury’s verdict. Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977). Circumstantial evidence alone may be sufficient to support a conviction. Ayers v. State, supra; Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977). The law makes no distinction between circumstantial evidence and direct evidence. Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975). On appellate review it is sufficient if we consider only the evidence which is most favorable to the appellee. Williams v. State; Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979). Indeed, we have previously upheld the conviction of a defendant for capital murder when the evidence was all circumstantial. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).

Some of the evidence presented in this case was the testimony of Chantina Ginn who testified that she lived with the appellant for several days prior to the commission of the crime in question and several days afterwards. She testified that she and Lorili Peterson spent several days at Lake Beaver with Richard Anderson and the appellant whom she knew' as Damon Peterson. This witness testified that Damon and Rick left the encampment on Beaver Lake on September 9, 1980, and took with them a briefcase, wig, some rope and a change of clothes. The wig was described as being for a woman, curly, light brown, and falling about halfway to the neck. The two left on the motorcycle which this witness and Richard Anderson had brought to Lake Beaver from Kansas about the first of September. Her testimony was that Rick and Damon returned about 10:00 p.m. on the fourth night after having left. Upon their return, they had two orange duffle bags filled with jewelry. All four of the parties kept different pieces of the j ewelry. Damon and Rick later attempted the burn the price tags and identification boxes, some of which were recovered by the officers and introduced in evidence. Mrs. Staton identified some of the material as coming from the store where her daughter and husband had been murdered. At least one tag from the jewelry was found in a storage room in Fayetteville which had been rented by the appellant, according to witness Heckathorn. Linda Godwin identified the appellant as one of the men she saw in the immediate vicinity of the Staton jewelry store about the time the robbery occurred. Pat Etier testified that she. met the appellant on September 9 outside the Wal-Mart store in Van Burén, Arkansas. She subsequently spent the night with him in her home. She had occasion to view him from head to foot with no obstructions. She positively identified him at the trial.

We are not unmindful that there was considerable evidence presented by alibi witnesses to the effect that the appellant was in Alabama at the time of the robbery and murder. However, as stated above, we consider only the testimony most favorable to appellee. Therefore, from a review of the record we find that there was substantial evidence to support the jury’s verdict.

V. THE COURT IMPROPERLY EXCLUDED A HYPOTHETICAL QUESTION BY APPELLANT’S ATTORNEY.

During the process of cross-examination of witness Linda Godwin defense counsel asked the following hypothetical question:

If it were developed in the course of this trial that seven (7) people will testify under oath that Gene Perry was in Alabama at the time this occurred, would that change your testimony in any way?

The state objected on the following grounds:

That is assuming a fact that is not in evidence.
THE COURT: That is correct, that is not a proper question.
MR. SHARUM: Your Honor, we anticipate the evidence will be presented.
THE COURT: Well, you can anticipate what you may wish, but I don’t believe that is a proper question. The court is overruling it.

Apparently, appellant did not proffer the answer and accepted the ruling of the court.

The matter has not been properly preserved for our consideration on appeal.

VI. IT WAS ERROR TO EXCLUDE THE EVIDENCE OF DEFENSE WITNESS DR. DOUGLAS A. STEVENS.

Dr. Douglas A. Stevens, a clinical psychologist, testified on behalf of the appellant at the suppression hearing. His testimony was to the effect that the photographic line-up, as well as the physical line-up, was unduly suggestive and from a psychologist’s viewpoint would cause the witnesses to identify the appellant even if they did not actually recognize him. We do not find any particular rules of evidence which control this issue. This exact question has not previously been presented to us. The trial court refused to accept this testimony at the suppression hearing and also excluded it from the trial in chief. We do not find any case from any jurisdiction directly on point. However, in Smith v. State, 258 Ark. 601, 528 S.W.2d 389 (1975), we held that it is well-established that the determination of an expert’s qualification as a witness is within the sound discretion of the trial court and, absent an abuse of discretion, we do not reverse its decision. In a closely related factual situation we note the case of Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (Ark. App. 1980). In Caldwell our Court of Appeals held that the testimony of a qualified expert in the field of human perception was properly rejected by the trial court on the grounds that such testimony would be an invasion of the purview of the duties of the jury. We hold that the expert testimony of Dr. Stevens was properly excluded.

VII. THE COURT SHOULD HAVE ALLOWED EXPENSES FOR OUT OF STATE WITNESSES ON BEHALF OF THE APPELLANT.

Like many other issues this is a matter which lies within the sound discretion of the trial court and will not be reversed unless a manifest abuse of this discretion is shown. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). We note that the court did allow unlimited depositions of out of state witnesses pursuant to Ark. Stat. Ann. § 43-2001 et seq. (Repl. 1977). The court had offered to allow the appellant to bring four witnesses from out of state to testify at the trial or to take the depositions of unlimited witnesses. The appellant chose the latter. We do not feel that the appellant has established that prejudice resulted from the trial court’s denial of this request. Butler v. State, 264 Ark. 243, 570 S.W.2d 272 (1978). We recognize that the state often has available to it expense money and other resources which are not available to an accused. However, there has never been any guarantee that there will be equal amounts provided for both the defense and the prosecution. Apparently, all of the witnesses suggested by the appellant appeared at the trial with one possible exception. Therefore, we do not feel there has been a showing of prejudice.

VIII. THE PROSECUTING ATTORNEY MADE IMPROPER ARGUMENT IN HIS CLOSING ARGUMENT.

It is insisted by the appellant that the prosecuting attorney made statements which amount to a comment on the right of the appellant to remain silent as guaranteed by the Fifth Amendment. The statement, which caused the case to be remanded for a settlement of the record, is stated as follows:

Obviously there is a lot of stuff being done here to disguise the names of people. What name is given for Damon when he is down in Florida? Damon Malantino. Why was that name used? Who can tell. It is obviously one thing; it was not the name of Wallace Eugene Perry on any of this stuff. And why not?... You do not have eye witnesses. Nobody is going to come in here and say yes, I robbed, and I have shot. Whose fault is that? It’s the defense’s fault. There are no witnesses. You know, criminals are the ones that pick the witnesses for crimes, because criminals are the ones that decide the time and the place of the crime.

There was no objection at the time these remarks were made. The argument by the appellant is that this court should review and reverse, in the absence of objection, when the error is so great that the trial court was under a duty to correct it immediately and where no objection or admonition could have undone the damage or erased the effect of the error from the minds of the jurors. Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980); Smith v. State, 268 Ark. 282, 595 S.W.2d 671 (1980).

The case was remanded for settlement of the record when the state argued that a portion of the above-quoted statement should have read:

Nobody is going to come in here and say yes, I’ve (been) robbed, and I have (been) shot.

The word “been” was not used by the state in the closing argument. Appellant argues the statements are comments on appellant’s exercise of his right to remain silent. However, considering the total context of the closing argument, and the lack of an objection at the time of the trial, we are of the opinion that this was not a comment upon the right of the appellant to remain silent. We are not in a position to know how the statement was delivered, with what inflections and emphasis, and are not able to see how the jury perceived it. The trial court has a broad latitude of discretion in supervising and controlling arguments of counsel and its decisions are not subject to reversal unless there is manifest abuse of that discretion. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). In the case before us we do not find that the failure to object reached the status required which demands that in the interest of justice this court consider the alleged error when no objection was made at the time the statements were made.

IX. THE COURT ERRED IN ADMITTING STATE’S EXHIBIT NO. 64 OVER APPELLANT’S OBJECTION.

The appellant insists that Exhibit No. 64 (sets of fingerprint cards) should not have been introduced because it contained irrelevant and immaterial information which was highly prejudicial to the appellant. The card contained the signature of Damon Malandno and listed the alias of Damon Peterson. Direct and cross-examination testimony had presented evidence that Eugene Wallace Perry and Damon Malantino and Damon Peterson were one and the same person. Therefore, it was not error to allow the introduction of the exhibit showing different names and apparently the same fingerprints as those on the card of Eugene Wallace Perry. We think it is not necessary to quote any authority because this matter is so clearly admissible or at the very most within the sound discretion of the trial court.

X. THE COURT ERRED IN FAILING TO GRANT A MISTRIAL ON ACCOUNT OF PREJUDICIAL NEWS REPORTS.

The appellant insists that certain television news coverage was prejudicial to his case. He alleges that the news reporter made erroneous statements which connected appellant with the “mafia” and alleged he intended to escape during the trial. When an argument is unsupported by either a statement of authorities or convincing evidence, the issue is precluded from consideration on appeal unless it clearly appears without further research that the argument is justified. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). This case falls within that category.

XI. IT WAS ERROR TO ADMIT THE TESTIMONY OF WITNESS CHANTINA GINN.

During the testimony by this witness the state elicited from her the following:

Lorili asked Rick how he liked the way Damon worked, and Rick didn’t make any reply.

When the above answer was given, a proper foundation had not been established. However, immediately, during the time appellant was objecting, the state elicited additional testimony from the witness that all four of them were present. The state’s attorney asked a leading question and in effect testified. This was error but it was not prejudicial. Such matters are best handled by the trial court at the time of the improper statement or question. There was no request by the appellant to strike this testimony nor that the jury be admonished. Therefore, we will not consider it on appeal. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).

XII. THE COURT ERRED IN REFUSING TO SEQUESTER THE JURY.

It is insisted that it was error for the court to refuse the appellant’s motion to sequester the jury during the trial, It is understandable that such á request was made, and we understand the reasons therefor. Ark. Stat. Ann. § 43-2121 (Repl. 1977) leaves it to the discretion of the trial court whether the jury will be sequestered. Such wide discretion will not be disturbed in the absence of a clear showing of prejudice. The appellant has not met the burden of showing that his trial was rendered unfair because of some outside influence on the jury. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982).

XIII. THIS COURT SHOULD MAKE A COMPARATIVE REVIEW OF THE APPELLANT’S DEATH SENTENCE WITH THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

The appellant insists that Richard Phillip Anderson, in a subsequent trial, received a life sentence upon conviction of first degree murder and therefore the appellant’s sentence of death by electrocution should be reduced. We agree with the appellant that we have agreed to review each sentence and compare it with other similar situations. Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). In Collins we stated that we were bound by the decision in Furman v. Georgia, 408 U.S. 238 (1972), to prevent any arbitrary or freakish use of the death penalty. We have compared the sentences of different appellants. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). One reason we cannot compare appellant’s case with that of Anderson is that Anderson’s case has not been considered by this court. Another reason is that we compare death sentences with death sentences. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), or death sentences with life without parole sentences. Swindler. Upon comparison of both the sentence and the facts, we do not feel appellant’s sentence should be reduced.

XIV. THE APPELLANT SHOULD HAVE BEEN INDICTED BY A GRAND JURY RATHER THAN ANSWER TO AN INFORMATION.

This argument hardly requires a response. The appellant quotes the Constitution of Arkansas which allows a proceeding by indictment instead of by a grand jury. Due to the serious nature of this case we have again reviewed our cases on this subject and we find no need to change our prior decisions. Our opinions are supported by the Supreme Court of the United States in the case of Gaines v. Washington, 277 U.S. 81 (1928). For a typical case in which we dismissed this argument without discussion see Ellingburg v. State, 254 Ark. 199, 492 S.W.2d 904 (1973).

XV. THE PHOTOGRAPHS WERE IMPROPERLY ADMITTED.

The appellant argues that exhibits 1 through 4, crime scene photographs, should not have been admitted into evidence. It is argued that the only purpose of such photographs was to inflame the passion and prejudice of the jury and that there was no probative value whatsoever in introducing the photographs. Photographs are admissible at the discretion of the trial court, and it does not matter that they are cumulative to other evidence. Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982). The photographs in the present case could have been helpful to the jury in understanding the testimony of witnesses in describing the scene as they found it after the murder. We do not find that these particular photographs are so highly prejudicial as to require their exclusion. Rogers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977).

XVI. THE COURT ERRED IN REFUSING TO GRANT A MISTRIAL.

On the second day of the trial, after the noon recess, an attorney from Georgia was present in the courtroom reading the local newspaper which carried a headline concerning the trial then in progress. It is argued the headlines were held in such a position that the j ury could at least read the headlines. The headline on the newspaper stated: “Wife Identifies Staton Wedding Ring.” The court initially refused to grant the mistrial and rejected appellant’s request to voir dire the jury on the matter. Before the trial was over, however, the court realized the error and inquired of the jury concerning this event. No member of the jury admitted having seen the headline. As we have said many times, a mistrial is a drastic remedy lying within the trial court’s discretion and the court’s decision will not be reversed in the absence of a showing of abuse of discretion. Hutcherson v. State, supra. No such abuse was shown here.

XVII. THE COURT ERRED IN FAILING TO DECLARE CHANTINA GINN AN ACCOMPLICE.

An accomplice is defined in Ark. Stat. Ann. § 41-303 (Repl. 1977):

(1) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or . . .

There is no evidence whatsoever in this case that Chantina Ginn did anything other than accept part of the loot after the crime was committed. She may have had reason to suspect that Rick and Damon were up to no good when they left Lake Beaver with a gun and a rope and other paraphernalia. Suspicion alone is not enough to make a witness an accomplice as a matter of law. Johnson & Keeling v. State, 259 Ark. 773, 536 S.W.2d 704 (1976).

XVIII. IT WAS NECESSARY THAT CHANTINA GINN’S TESTIMONY BE CORROBORATED.

Appellant insists that witness Ginn was an accomplice as a matter of law. In the preceding point we have explained that she was not an accomplice as a matter of law. Appellant is correct that an accomplice’s testimony is viewed with some skepticism and that is the reason that we require independent corroboration of an accomplice’s testimony. Even if Chantina Ginn were an accomplice, the facts previously set out in this opinion conclusively show that there is independent evidence which tends to connect the appellant with the commission of the crime. Olles & Anderson v. State, 260 Ark. 571, 542 S.W.2d 755 (1976).

XIX. ARKANSAS’S CAPITAL MURDER STATUTE IS UNCONSTITUTIONAL.

We have held numerous times that Ark. Stat. Ann. § 41-1501 (Repl. 1977), our death penalty statute, is constitutional. It was first held constitutional in Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), and one of the latest cases is Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982).

XX. THE TRIAL COURT ERRED IN ESTABLISHING JURORS’ QUALIFICATIONS THROUGH PREJUDICIAL VOIR DIRE EXAMINATION.

We have attempted to discourage prolonged and confusing voir dire examinations of prospective jurors. Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980). In Haynes we stated the purpose of selecting a jury is to obtain a panel which will be fair and impartial to the accused as well as to the state. Therefore, any questioning done by the court should be very carefully phrased in order to prevent the members of the jury from feeling that the court wants them to decide one way or the other. Usually, there are enough prospective jurors present to form a petit jury without the necessity of going to great length or prolonged voir dire in attempting to rehabilitate a prospective juror. We agree that the judge cannot step from the bench to the aid of either party and that he must not unfairly limit the right of either party to voir dire the prospective jurors. However, there must be an end to questioning at some time and as soon as it is evident that a juror is qualified or disqualified the questioning should stop. We recognize that members of the jury probably look to the trial judge with more respect than any other party before them. To them his word is the law. West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973). The only objection preserved for argument appears to be against the seating of juror Ann Bolling. At one time she stated: “I think he should present his side of the story.” She later stated she understood the state had the burden of proof. She was excused by the appellant. The burden is on the appellant to prove a juror’s disqualification. Beed v. State, supra. We do not find anything in the abstract or argument to support the contention that the trial court exhibited prejudice or improperly rehabilitated any j uror. Under these circumstances we do not find prejudicial error in this argument.

XXL THE TRIAL COURT ERRED IN QUALIFYING THE JURY FOR THE DEATH PENALTY.

Before the voir dire of the prospective jurors the appellant moved the court to prohibit the state from “death qualifying” the panel. The motion was overruled. After the jury was seated, and the appellant had used all his peremptory challenges, his motion was renewed and rejected by the court. Therefore, the jury, as empanelled, was what has become known as the “Witherspoon” or “death qualified” jury. We have a great number of cases rejecting the argument that a “death qualified” jury is more apt to convict than a jury not so qualified. Lasley v. State, 274 Ark. 352, 625 S.W.2d 466 (1981); Ruiz & Van Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981); and Gruzen v. State, 276 Ark. 149, 634 S.W.2d 921 (1982). We have held that it would be improper to select a j ury panel which had agreed in advance to impose the maximum sentence. Haynes v. State, supra. On the other hand, we have stated that it was not error to excuse a venireman for cause when he unequivocally stated he could not vote for the death penalty. Ruiz & Van Denton v. State, supra. Therefore, we again hold that it is not error to select a jury which agrees in advance to consider the death penalty.

XXII. OTHER ADVERSE RULINGS

We have searched the record in compliance with our Rule 11 (f) and A.R.Cr.P. Rule 36.24 and Ark. Stat. Ann. § 43-2725 (Repl. 1977) and find no errors prejudicial to the rights of the appellant which have not been discussed in this opinion.

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    David Lee ALLEN v. STATE of Arkansas
    CR 82-100
    641 S.W.2d 710
    Supreme Court of Arkansas
    Opinion delivered November 15, 1982

      Thomas G. Montgomery, Crittenden County Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

On the night of October 20, 1981, Linda Smith was employed as the sole attendant of the Nic-Nac convenience store in West Memphis. Miss Smith’s attention was riveted on a woman who entered the store and appeared to be drunk. Suddenly a man with a gun loomed and told Miss Smith it was a hold-up. The woman immediately shoved Miss Smith to the cash register and took the money. The man then shot Miss Smith in the chest; she brought her arm up to her chest and he shot her in the arm; she turned and he shot her twice in the back. The robbers fled, Miss Smith called the police, asked for help and accurately described both of the robbers. On October 26, 1981, a warrant was issued for the arrest of Dorothy Gatewood who confessed two days later. Upon confessing, she stated that the appellant, David Lee Allen, was the man who had been with her at the robbery and was the one who had shot Miss Smith. She signed an affidavit implicating appellant. The police officials immediately gave their information and the affidavit to the deputy prosecuting attorney who, in turn, filed an information in municipal court charging appellant with the crimes of aggravated robbery, battery in the first degree and felon in possession of a firearm. The clerk of the municipal court issued a warrant for the arrest of appellant who was arrested at 3:20 that afternoon and was given a valid Miranda warning at 4:20 p.m. Appellant confessed to his part in the crimes and the interview was concluded by 5:10 p.m. Linda Smith positively identified appellant as the one who robbed and shot her. Appellant was found guilty on all three charges. He was sentenced to life imprisonment on the aggravated robbery conviction. Jurisdiction is in this court pursuant to Rule 29 (1) (b). We reverse and remand for a new trial because prejudicial error was committed.

Appellant contends that the trial court erred in excluding the rebuttal testimony of a defense investigator, Martin Klindworth. We agree. Appellant had invoked the rule pursuant to Unif. R. Evid. 615, Ark. Stat. Ann. § 28-1001 (Repl. 1979), yet this witness had remained in the courtroom during most of the trial.

Appellant’s purpose in calling Klindworth was to rebut the following testimony: Dorothy Jean Gatewood, the accomplice of appellant and a State’s witness, testified on cross-examination that she had talked with Martin Klindworth. She denied, however, telling him that she had made an agreement in exchange for her testimony. In addition, she denied having told the investigator that she heard unusual noises in the interrogation room when she was present when appellant was brought in for questioning. Klindworth’s proffered testimony goes to the credibility and bias of witness Gatewood as Klindworth would have testified that in a prior statement she said an agreement had been reached with the prosecutor by which she would not have to stand trial if she testified against appellant. He also would have testified that she had previously stated she heard unusual noises during the interrogation of appellant.

The State argues that the proffered evidence was sought to impeach Gatewood on a collateral matter and therefore was not admissible. However, the first part of the proffer concerning an agreement to testify goes to possible bias and the bias of a witness is not a collateral matter. Bias may be inquired into on cross-examination and may be proven extrinsically. Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978). See generally, McCormick’s Evidence § 36 (1972 ed.).

The real issue is whether the witness’ testimony should have been excluded for violation of the rule. In Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975), our law was clearly set out as follows:

The rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness. Harris v. State, 171 Ark. 658, 285 S.W. 367; Hellems v. State, 22 Ark. 207; Golden v. State, 19 Ark. 590; Pleasant v. State, 15 Ark. 624. The power to exclude the testimony of a witness who has violated the rule should be rarely exercised. We have been unable to find any case in which this court has sustained the action of a trial court excluding the testimony of such a witness. While the witness is subject to punishment for contempt and the adverse party is free, in argumen t to the j ury, to raise an issue as to his credibility by reason of his conduct, the party, who is innocent of the rule’s violation, should not ordinarily be deprived of his testimony. Harris v. State, supra; Aden v. State, 237 Ark. 789, 376 S.W.2d 277; Mobley v. State, 251 Ark. 443, 473 S.W.2d 176.
Although the trial court has some discretion in the matter, its discretion is very narrow and more readily abused by exclusion of the testimony than by admitting it. Harris v. State, supra. It has even been held that failure to make a formal proffer of the testimony of a witness excluded upon no basis other than his violation of a sequestration order, without the knowledge, procurement or consent of defendant or defense counsel cannot be used to deprive the accused of his constitutional right to compulsory attendance of witnesses in his behalf. See Braswell v. Wainwright, 463 F.2d 1148 (5 Cir., 1972). See Art. 2 § 10, Constitution of Arkansas.

We have frequently expressly reaffirmed Williams, supra, a 1975 case. Norris v. State, 259 Ark. 755, 536 S.W.2d 298 (1976); Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (1977); McCorkle v. State, 270 Ark. 679, 607 S.W.2d 655 (1980). Two cases are similar to the case at bar and in both we reversed. Norris v. State, supra; and Mobley v. State, 251 Ark. 448, 473 S.W.2d 176 (1971). The federal courts interpret Federal Rule of Evidence 615 in the same manner. See 3 Weinstein’s Evidence § 615 [03].

In the case before us the need for witness Klindworth’s rebuttal testimony did not arise until Dorothy Gatewood testified late in the trial. Appellant’s attorney argues that until that time he did not know that her testimony would be inconsistent with the prior statements she had given Klindworth. The attorney saw no reason to have Klindworth listed as a witness and excluded from the courtroom. There was no connivance between appellant, or his attorney, and the excluded witness. The testimony regarding bias should not have been excluded. We cannot say that it is manifest that appellant was not prejudiced when he was deprived of the excluded testimony. Thus, we must reverse on this point. Graves v. State, 256 Ark. 117, 505 S.W.2d 748 (1974).

The State also contends that Klindworth’s testimony was properly excluded as hearsay. Since the testimony was offered for the purpose of showing that witness Gatewood had made prior inconsistent statements rather than for the truth of the matter asserted, there is no merit in this argument.

Since the case will be remanded we now discuss the other points raised in this appeal which will likely again arise upon retrial.

Appellant contends that the warrant of arrest was technically illegal. Appellant then inductively reasons that since the arrest warrant was illegal, it must follow that the arrest was illegal and that, in turn, tainted the confession to the extent that it is “fruit of the poisonous tree.” We agree with the trial court that the confession was admissible in evidence.

Rule 7.1 (c), A.R.Cr.P. provides:

The clerk of a court or his deputy may, when authorized by the judge of that court, issue an arrest warrant upon the filing of an information or upon affidavit sworn to by the complainant and approved by the prosecuting attorney. Any such information or affidavit shall be indorsed by the prosecuting attorney approving the issuance of the warrant.

The deputy prosecuting attorney filed an information and the arrest warrant was issued on the basis of the information. The defense filed a motion to suppress contending that the municipal judge had not caused an order to be entered authorizing the clerk to issue arrest warrants upon the filing of an information. The State failed to prove that an order existed but did prove that the municipal judge had authorized the clerk to issue a warrant upon the filing of an information. We do not find it necessary to decide whether the judicial officer must enter an order to authorize this procedure. Nor do we find it necessary to decide whether such authorization must be specifically for each case or whether it can generally be made applicable to all cases filed. The confession in this case was admissible in any event.

The Supreme Court of the United States in Wong Sun v. United States, 371 U.S. 471 (1963) held that the Fourth Amendment exclusionary rule applies to statements obtained following an illegal arrest the same as it does to illegally seized evidence. However, Wong Sun squarely rejected a simple "but for” test that would render inadmissible all statements given after an illegal arrest. Brown v. Illinois, 422 U.S. 590 (1975), similarly rejected the "but for” test and mandates an evaluation of each case in the light of the policy served by the exclusionary rule, that is, deterring lawless conduct by officers by removing the incentive to disregard those laws.

Here, a warrant of arrest was not constitutionally required. See e.g., Payton v. New York, 445 U.S. 573 (1980). Probable cause for the arrest clearly existed. Thus, the arrest would have been valid without a warrant. The illegality of the warrant here served no quality of purposefulness. There was no misuse of power to gain the confession. The police gained no advantage by use of the invalid warrant. The police should not be penalized for attempting to afford an unnecessary procedural safeguard to appellant. Therefore there is no policy reason to apply the exclusionary rule under the Fourth Amendment. We decline to apply the Fourth Amendment exclusionary rule.

Appellant also contends that the confession was admitted in violation of his Fifth Amendment right against self-incrimination. Before a confession can be admitted into evidence, the State must make a prima facie showing that the accused knowingly, voluntarily and intelligently waived his right to remain silent. Miranda v. Arizona, 384 U.S. 436 (1966); Hignite v. State, 265 Ark. 866, 581 S.W.2d 552 (1979). On appeal we review the evidence and make an independent determination of the issue of voluntariness. Davis v. North Carolina, 384 U.S. 737 (1966); Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981). The trial court’s determination as to voluntariness will only be set aside where it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974). At the Denno hearing the State’s proof showed that appellant was advised of his Miranda rights and that he knew, understood and accepted those rights. He then signed a waiver of rights form and agreed to talk to the police. The waiver of rights form was admitted into evidence. The appellant gave an oral confession to the police which was not transcribed. The appellant also gave a statement in his own handwriting in which he admitted shooting the victim three times. The handwritten statement was introduced into evidence at the trial. All of the police officers testified that appellant, while making his statement, was not mentally or physically mistreated, nor was he forced or coerced into making a statement and that appellant was not physically abused nor did he ask for an attorney. The testimony was that about 30 minutes elapsed between the execution of the waiver of rights and the actual making of the statement.

The appellant testified that the confession came only after threats, force and intimidation. The State rebutted his testimony with numerous witnesses who had been near the interrogation room and heard no unusual sounds. The trial court was in a superior position to observe the manner and demeanor of the witnesses. It was for the trial court to weigh the evidence and resolve the credibility of the witnesses. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981). The trial court’s determination that the confession was voluntarily given is not against the preponderance of the evidence. The trial court ruled correctly on this issue. The confession was admissible in evidence.

There is no merit in appellant’s other arguments.

Reversed and remanded.


author: Steele Hays, Justice.

text:
    Mona Alpha ADKINS, Executrix of the Estate of Raymond L. ADKINS, Deceased v. Elizabeth HUGHES and Ruby HILL
    82-107
    642 S.W.2d 94
    Supreme Court of Arkansas
    Opinion delivered November 15, 1982

      Alonzo D. Camp, for appellant.

      Homer Tanner, for appellees.
   Steele Hays, Justice.

This is an inner-family dispute. Mona Adkins, appellant, is the widow of Raymond Adkins and a sister-in-law of Elizabeth Hughes, Ruby Hill and Betty Hughes, deceased. Mona brought this suit against Elizabeth and Ruby, claiming an inter vivos gift to Raymond of a $10,000 Certificate of Deposit. The Chancellor found there was no gift and the issue on appeal is whether the evidence established a gift. We affirm the Chancellor.

Prior to her death in January 1981, Betty had been physically incapacitated for a number of years and her business affairs were being handled by her sister, Elizabeth. In 1979, Betty obtained a $30,000 C.D., naming her sisters, her brother and herself as co-owners. At a family gathering in January, 1980, a dispute arose concerning the certificate. Elizabeth then went to the bank and had the $30,000 C.D. converted into three C.D.’s of $10,000 each, listing the same four names on each certificate. She returned to the house and in Betty’s presence gave one C.D. to Ruby, one to Raymond, and kept one for herself. Raymond died a year later, several weeks before Betty.

There were irregularities in the procedures setting up the original $30,000 C.D. and in the subsequently converted C.D.’s of $10,000 each. The trial court held that a joint tenancy had not been established on either occasion and that the money had remained Betty’s at all times. We agree with the result reached by the trial court. It appears that the most we can say about the $10,000 C.D. that was handed to Raymond is that it was a C.D. for $10,000 in Betty’s name. It is not necessary to discuss the trial court’s finding on the joint tenancy as that issue is not contested by the appellant, nor do we need to determine the status of the C.D. delivered to Raymond, as we agree in any case, that the trial court was correct in its finding that there was insufficient evidence to establish an inter vivos gift.

We stated the rule for establishing a gift in Boling, Special Administrator v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979).

[The appellants have] the burden of showing, by clear and convincing evidence, that these certificates were delivered to them by [the donor] with the clear intent to make an immediate, present, final gift beyond recall, releasing all future dominion and control. It must have been the intention of the donor that title pass immediately. . . .

The only evidence on behalf of Mona that might indicate a gift was her own testimony pertaining to Betty’s intent at the family gathering:

Betty told Elizabeth to go to the bank... and Elizabeth had one certificate, to take care of it, and to make three of them, one for Ruby and one for Raymond. . . .

There was no other evidence introduced that would imply that an effective gift had been made. Even Mona’s testimony on the issue of intent fails to rise to the level of a present and immediate gift. The remainder of the argument is based on speculation.

Elizabeth testified that Betty had suffered a stroke and had had light strokes from time to time, was not able to write her name and had difficulty in her speech. Betty’s nurse also testified as to her poor physical condition. The trial court in its findings stated it did not find Betty was fully competent to transact business at all times mentioned, and her competency was not proved by any testimony.

Betty was present at the gathering but except for Mona’s testimony she was a passive participant in the proceeding and made no significant comment. The nurse said Betty did not even look at the C.D.’s when Elizabeth returned from the bank. Mona’s claim that Betty instructed Elizabeth to cash in the C.D. and divide the proceeds equally among the three for gift purposes is unsupported. Elizabeth’s explanation was that dividing up the C.D.’s was for safekeeping, and to prevent family squabbling. She said the $30,000 constituted most of Betty’s assets and this testimony was not challenged.

In studying the abstracted testimony, we find nothing relative to either the original C.D. or the converted C.D.’s that indicates Betty ever intended to make a present, immediate or final gift or to give up all dominion and control of what was apparently all her cash assets. Her passive role in the transaction can only provide us with matters of speculation and does not give clear and convincing evidence that a gift was intended:

... a delivery for safekeeping or for any purpose, either express or implied, other than a specific intent to part with all right, title and interest in, and all dominion and control over the certificates would not constitute a gift. Boling, supra, at 17.

Affirmed.


author: Per Curiam.

text:
    Richard Phillip ANDERSON v. STATE of Arkansas
    CR 82-69
    641 S.W.2d 715
    Supreme Court of Arkansas
    Opinion delivered November 15, 1982

      Rose, Kinsey & Cromwell, by: William M. Cromwell and Sam Park, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant, through his attorneys, William Cromwell and Sam Park, has filed a motion to file an extended brief of 47 pages. The appellee has also requested permission to file an extended brief of 43 pages. We grant the appellant and appellee permission to file extended briefs as requested.

Appellant also filed a motion on August 23, 1982, asking that he be permitted to file a belated brief. The motion was denied, but we said that in accordance with our Per Curiam order of February 5, 1979, 265 Ark. 964, it was subject to being granted if the attorneys would accept responsibility or give other cause for the failure to file the brief within time. One of the attorneys, Mr. Cromwell, has complied with the procedure set forth in that order and has submitted an affidavit accepting fault for the untimely tendering of the brief. The other attorney, Mr. Park, has not responded.

Even though Mr. Park has not conceded his error or offered other good cause for the untimely tender, we will grant the motion for belated brief since to do otherwise would operate to deny the appellant a right to appeal because of his attorneys’ neglect of a professional duty. See Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). We further note that Park’s failure to state good cause for the late tendering of the brief must be considered an admission that he was at fault.

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

Motion granted.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    Paul Lawrence BLACKMON v. Honorable Harlan WEBER, Judge, Pulaski Circuit Court
    CR 82-92
    642 S.W.2d 294
    Supreme Court of Arkansas
    Opinion delivered November 22, 1982

      Jeff Rosenzweig, for petitioner.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for respondent.
   Richard B. Adkisson, Chief Justice.

Petitioner, Paul Lawrence Blackmon, seeks a writ of prohibition pursuant to A.R.Cr.P. Rule 28.1 (d), Ark. Stat. Ann., Vol. 4A (Supp. 1981) to prohibit the Fourth Division of the Pulaski County Circuit Court from proceeding to trial on a charge of first degree battery against petitioner. Petitioner alleges that the trial court should have granted his motion to dismiss the charge because his right to a speedy trial was violated. We do not agree and deny the writ.

The incident giving rise to the charge of first degree battery occurred on August 24,1980, while petitioner was an inmate in the Pulaski County Jail as a federal detainee. The following day he was transferred to a federal prison in El Reno, Oklahoma. On September 25, 1980, he was officially charged with battery. The prosecuting attorney placed a detainer against him pursuant to A.R.Cr.P. Rule 29.1 (b), Ark. Stat. Ann., Vol. 4A (Supp. 1981) which provides:

If the prosecuting attorney has information that a person charged with a crime is imprisoned in a penal institution of a jurisdiction other than the State of Arkansas, he shall promptly cause a detainer to be filed with the official having custody of the prisoner and request such officer to advise the prisoner of the filing of the detainer and of the prisoner’s right to demand trial.

This rule supplements the Interstate Agreement on Detainers,'Ark. Stat. Ann. § 43-3201 (Repl. 1977), which entitles a prisoner incarcerated in another “state” to a trial within 180 days if he so requests. Petitioner did not request trial pursuant to this act.

On December 18,1981, petitioner completed his federal sentence and was transferred to the Pulaski County Jail. A bail bond was filed on January 5, 1982, and a trial date was set for June 25, 1982.

We do not agree with petitioner’s argument that since he was not brought to trial within 18 months, his right to a speedy trial was violated under A.R.Cr.P. Rule 28.1 (c), Ark. Stat. Ann., Vol. 4A (Supp. 1981) which provides:

Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, including release from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

By its express terms this rule does not apply to the petitioner who was not held to bail or was not otherwise at liberty. Also, this rule would be inapplicable to the petitioner because a detainer was placed against him under the Interstate Agreement on Detainers Act. And, A.R.Cr.P. Rule 28.1 (g), Ark. Stat. Ann., Vol. 4A (Supp. 1981) clearly states that Rule 28.1 “shall have no effect in those cases which are expressly governed by the Interstate Agreement on Detainers Act.”

Writ denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the denial of the writ because I feel that all the relevant facts are not before us. The majority has correctly set out A.R.Cr.P. Rule 29.1 (b) which requires the prosecuting attorney to promptly file a detainer and request the official having custody of the prisoner to advise the prisoner of the filing of the detainer and of his right to demand trial. The record is absolutely silent as to whether the petitioner was notified of his right to demand trial. No doubt, this information is available in the trial court and if it is proven that appellant was not notified of his right to demand a speedy trial, I think it will require reversal. If notice to the prisoner was not given, as required by Rule 29.1 (b), the time should run from the time the detainer was filed. It is unfair to penalize an accused when the state fails to notify a prisoner of his right to a speedy trial, sits back and lets the time run until the prisoner’s sentence is fully served before commencing proceedings in the cause for which the detainer was filed.

We discussed this same problem in the case of Dukes v. State, 271 Ark. 674, 609 S.W.2d 924 (1981). In the Dukes case it was not disputed that appellant was tried within 180 days from his request for trial. Dukes’ request for a speedy trial was filed November 20, 1979. This was the same date that the warrant and information from Arkansas were served upon him. He was tried on May 9, 1980. Obviously, this was within the 180 day time limit required under the circumstances. While there is a positive duty on the part of a prisoner to request a speedy trial, there is also a duty on the part of the state to file the detainer and promptly notify the prisoner both that the charge is pending and that he can demand a speedy trial. In the present case the petitioner certainly was not tried within 180 days from the time the charge was filed.

I am unable to tell from reading the majority opinion what date the detainer was placed against the petitioner. Neither is there a statement that the petitioner was given the warning required by the provisions of A.R.Cr.P. Rule 29.1 (b). Therefore, I would remand the case for further proceedings.


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

text:
    Bob HULVA v. ARKANSAS STATE BOARD OF DENTAL EXAMINERS
    82-109
    642 S.W.2d 296
    Supreme Court of Arkansas
    Opinion delivered November 22, 1982

      Peggy O’Neal, for appellant.

      William H. Trice, III, for appellee.
   George Rose Smith, Justice.

The State Board of Dental Examiners brought this suit to enjoin the appellant, Bob Hulva, from engaging in the practice of dentistry without a license. This appeal, which comes to us under Rule 29 (1) (a), is from a decree granting the injunction. For reversal it is argued that the governing statutes are unconstitutional for a number of reasons. We affirm the decree.

Hulva is not qualified to be licensed as a dentist, not having been to any medical or dental school or having graduated from high school. More than 20 years ago he worked for a few years in a dental laboratory and learned how to make dentures. With that experience he set up his own dental laboratory next to his home in Van Burén. None of his customers are referred to him by a licensed dentist. His work consists of taking either one or two impressions of the customer’s mouth, making the dentures, and delivering them to the customer. He is not trained to take x-rays or to diagnose or treat diseases of the mouth or gums. He makes dentures primarily for elderly people who either are in nursing homes or cannot afford the prices charged by dentists. He does not advertise.

The statutes, even before a 1981 amendment passed after this suit was filed, required that dental laboratories deliver their products through a licensed dentist, who ordinarily takes or has the impressions taken in his office and sends the impressions to the laboratory with a specific description of the work to be done. Ark. Stat. Ann. §§ 72-543 and -545 (Repl. 1979). Dr. Gill, a member of the Board, testified that he had four years of dental school and took an examination before obtaining his license to practice dentistry. In his training as a dentist he was educated to diagnose diseases, malignancies, and other conditions in the mouth that might interfere with the wearing of dentures. He testified that he examines the patient’s mouth and usually takes x-rays to determine if there are any areas that might be a detriment to the wearing of a denture. He takes the impressions and either makes the appliance himself or sends the impressions to a qualified laboratory. When the appliance comes back he seats it in the patient’s mouth and establishes certain relationships to be certain that the appliance is correct. The final responsibility for the functioning of the denture rests on the dentist.

Hulva challenges the validity of our statutes primarily on the ground that, contrary to the due process and equal protection clauses, he is being arbitrarily deprived of his livelihood, because no special skill or training is required for the work that he does. Such laws, however, have been upheld as a proper exercise of the police power for so many years and in so many jurisdictions that a detailed review of the cases is unnecessary. What we said almost a century ago is still true:

The legislative judgment that the welfare of the public requires that those practicing the dental profession shall possess the necessary skill and learning, and shall obtain a certificate, is probably conclusive; but if it were not, the court must take judicial knowledge that it is a profession requiring skill. The fact that the dentist employs his professional skill upon an important part of the body is, of course, known to everyone, and cannot be unknown to the courts. As this is known, it must follow that it may also be judicially known that one unskilled in the profession may injure the person who employs him. As this is so, then ... the Legislature may prescribe the qualifications of those permitted to practice the profession.

Gosnell v. State, 52 Ark. 228, 12 S.W. 392 (1889). Accord: Missionary Supporters v. Ark. State Bd. of Dental Examiners, 231 Ark. 38, 328 S.W.2d 139 (1959). Considerations such as those attested to by Dr. Gill demonstrate that our statutes are a permissible exercise of the state’s police power in the area of public health.

An Idaho case relied upon by the appellant, Berry v. Summers, 283 P.2d 1093 (1955), is not in point. There the statute that was held invalid provided in effect that only a licensed dentist could work in a dental laboratory, even though the worker performed no work whatever in the oral cavity of any person, took no impressions, and in fact had no contact at all with the ultimate recipient of the denture. Needless to say, Hulva is free to accept that kind of employment if he chooses.

The appellant’s remaining arguments require little comment. The statutes do not delegate legislative power, because the Board has made no regulation or order affecting Hulva that is anything more than the execution of the legislative mandates. We fail to see how the statutes are overly broad or indefinite insofar as they specifically prohibit the kind of dental work that Hulva is engaged in. Finally, the perfunctory argument that the statutes are in restraint of trade need not be considered, under the Dixon rule. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent because I do not believe the appellant is “practicing dentistry” within the meaning of Ark. Stat. Ann. § 72-548 (Supp. 1981). Reduced to its most simple terms the Arkansas State Board of Dental Examiners wants the appellant enjoined from selling teeth unless a dentist receives a commission on such sale. There is no doubt that the board would clearly allow appellant to do exactly the same work he has been doing, except for the free services, provided he ran the business through the account of a practicing dentist.

I have no dispute with the board nor the majority opinion that the state may, under its police powers, regulate the practice of dentistry. However, it clearly cannot prohibit a merchant from selling dental cleaners such as toothpaste. The narrow interpretation given by the majority would probably apply to brushing one’s teeth thereby making such action “practicing dentistry.” Clearly, the examination and/or pulling of a child’s tooth, by a parent, is forbidden under the broad terms of the majority’s interpretation of this act. Certainly, the fitting of mouth pieces by coaches and trainers in athletic events is not authorized by one who is not licensed to practice dentistry.

The pertinent part of Ark. Stat. Ann. § 72-543 is stated as follows:

. . . “practicing dentistry” shall mean and include examination, diagnosis, treatment, repair, prescription and/or surgery of or for any disease, disorder, deficiency, deformity, condition, lesion, injury or pain of the human oral cavity, teeth, gingivae and soft tissues, and the diagnosis, the surgical and adjunctive treatment of the diseases, injuries and defects of the human jaws and associated structures, and shall also include the sale or offer for sale of those articles or services of dentistry enumerated in subsection (A) of Section 12 [§ 72-545] of this Act.

The appellant was not treating, repairing, prescribing, performing surgery, or examining the clients for treatment of any kind. Unless he was doing acts which include examination, diagnosis, treatment, repair, prescription and/or surgery, he would not be prohibited from operating under the terms of this statute. There is no claim that he was doing surgery or diagnostic examinations. Neither was he treating his clients for disease, injuries, or defects of the human jaws and associated structures. However, he was probably violating the provisions of Ark. Stat. Ann. § 72-545 (Repl. 1979). This statute prevents any person other than a licensed dentist from selling or delivering to the general public services or goods relating to construction, alteration, repairing, and cleaning or polishing of teeth or bridges. This statute excepted from the prohibition the same acts as long as the services or materials were delivered to or for a licensed dentist. This statute is so broad it would prevent the sale and use of mouth pieces commonly used in athletics to protect participants from injury.

One of the most unfortunate aspects of this decision is that it will prohibit the appellant from performing free or low cost services to the needy and elderly in his community. After all, these are people who may be unable to afford the services of a dentist. In any event, I view the statutes regulating the practice of dentistry to include manufacturing false teeth, as unnecessary for the preservation of the health, welfare and safety of the people of Arkansas. There is no dispute but that appellant would be able to continue this same work provided it were to be routed through the office of a dentist. This clearly is not in the interest of the public. I agree that one does not have an absolute right to practice his trade or profession but the Constitution provides that the limitation must bear a reasonable relation to the trade or profession. Dent v. West Virginia, 129 U.S. 114 (1889). The majority rely on the case of Missionary Supporters, Inc. v. Ark. State Bd. of Dental Examiners, 231 Ark. 38, 328 S.W.2d 139 (1959). However, the action sought to be prohibited in that case was the training of missionaries who would do the dental work. In Missionary, the court found that it was uncontroverted that the appellant’s practice clearly came within the terms of the statutes defining the practice of dentistry. It appears to me the action prohibited in the Missionary case was the training of missionaries who, in the course of their studies, practiced dentistry on some 950 patients. I agree that one should not be allowed to set up an unapproved school of dentistry and license anyone who was able to complete a ten to twelve week course. However, when it comes to the simple task of manufacturing a set of false teeth I feel that any person who is able to do so should not be prohibited from doing so. There is no attempt to practice dentistry by such a person. It is much like fitting a pair of shoes or a pair of sunglasses. Certainly, the state would not prohibit a clerk from selling sunglasses or shoes on the basis of infringing upon oculists or podiatrists. As I see it, there is no more danger of an adverse effect to the public by the actions of this appellant than from the clerks last mentioned.

I would allow the appellant to manufacture teeth so long as he refrained from the practice of dentistry, as defined under our statutes.


author: Frank Holt, Justice.

text:
    Larry Gene SMITH v. STATE of Arkansas
    CR 82-89
    642 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered November 22, 1982

      Woodson Walker Associates, P.A., for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was convicted of two counts of aggravated robbery (Ark. Stat. Ann. § 41-2102 [Repl. 1977]) and sentenced to twenty years imprisonment for each count, to be served consecutively. We affirm.

Appellant first contends, through substituted counsel on appeal, that the jury verdict, finding him guilty of two counts of aggravated robbery, is not supported by the evidence. However, he limits his argument to the sufficiency of the evidence as to count two, which names the victim as Kory Zuniga. The alleged victim in count one is Mark Kessinger. Specifically, appellant asserts there is no evidence that he threatened to employ physical force upon Zuniga while armed with a deadly weapon.

Zuniga did not testify. Kessinger testified that Zuniga and he were selling housewares from a van when appellant approached them. He, Kessinger, had stepped from the van. Zuniga remained in the driver’s seat. The appellant stuck a pistol in Kessinger’s back and threatened to kill him if he moved and demanded money. Kessinger saw the pistol and described it. Appellant then took Kessinger’s wallet, which contained $78, from his back pocket. The appellant then told Zuniga to give him his wallet while he was still standing behind Kessinger, who was facing Zuniga. According to Kessinger, when the appellant asked Zuniga for his wallet, the appellant “had the gun underneath my armpit behind me, in plain sight. ...” Zuniga opened his wallet which showed it contained no money. The appellant then took their brief case and told them to open it, which was done. It contained no money, only checks. At gunpoint, he then ordered them to get in the van and leave the scene. As they started to leave, an officer arrived and they reported the incident. The arresting officer testified that after a short footrace he apprehended the appellant and found him in possession of the wallet. He observed appellant with a pistol and found the pistol a few feet from him at the time of the arrest. Appellant denied any complicity or knowledge of the alleged offense. Thus, the testimony is in conflict only as to his participation in the alleged offense.

In Fairchild v. State, 269 Ark. 273, 600 S.W.2d 16 (1980), we summarized the elements of aggravated robbery:

A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. Ark. Stat. Ann. § 41-2103 (Repl. 1977). Physical force means any bodily impact, restraint, or confinement or the threat thereof. Ark. Stat. Ann. § 41-2102 (Repl. 1977). A person commits aggravated robbery if he commits robbery armed with a deadly weapon, or represents by word or conduct that he is so armed. Ark. Stat. Ann. § 41-2102 (Repl. 1977).

On appeal we review the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the jury verdict. Cooper v. State, 275 Ark. 207, 628 S.W.2d 324 (1982); and Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978). Here, there is ample substantial evidence to support the jury’s verdict finding appellant guilty of aggravated robbery of Zuniga, i.e., the appellant, with the purpose of committing a theft, employed or threatened to immediately employ physical force upon Zuniga, and did so while armed with a deadly weapon.

Neither do we find any merit in the contention that the trial court erred in failing to instruct on robbery, a lesser included offense of aggravated robbery. The thrust of appellant’s argument is that the evidence is deficient or in conflict as to the appellant’s being armed. As indicated, Kessinger and the officer, who chased and arrested the defendant immediately after the robbery, testified that appellant was armed. No witness testified to the contrary except appellant, who denied any involvement in or knowledge of the robbery. The trial court is not obligated to charge the j ury with respect to a lesser included offense when there is no rational basis for the jury to find appellant guilty of a lesser included offense. Ark. Stat. Ann. § 41-103 (3) (Repl. 1977); and Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972). Here, obviously, there was no rational basis for the jury to find appellant guilty of robbery, a lesser included offense. The evidence clearly shows the only fact issue for the jury to resolve was whether the defendant was guilty of aggravated robbery as charged or was innocent.

Finally, the appellant argues that the court erred in permitting the prosecutor to inquire of appellant on cross and recross examination as to his previous conviction of three robberies based on multiple counts. Since no objection was made at trial and it is raised for the first time on appeal, we do not consider this contention. Neither do we consider this questioning as being an exception to the requirement of an objection as is defined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Affirmed.