author: David Newbern, Justice. Darrell Hickman, Justice, Tom Glaze, Justice,

text:
    Larry Dean ROBERTSON v. STATE of Arkansas
    CR 88-56
    765 S.W.2d 936
    Supreme Court of Arkansas
    Opinion delivered February 27, 1989

      Haddock & Mazzanti, by: James W. Haddock; Johnson & Harrod, by: S. Reid Harrod, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Larry Dean Robertson appeals his conviction of capital murder for which he was sentenced to life imprisonment without parole. Robertson was accused of murdering Mrs. Bernice Sanderlin. The evidence showed that Robertson was released from prison and taken by a prison official to Dumas where he was to get on a bus. He went into a business establishment where he stabbed Mrs. Sanderlin with a pair of scissors. The scissors penetrated her eye and brain and caused her death. He left with Mrs. Sanderlin’s purse. The judge refused at several stages of the trial to rule on whether Robertson was mentally competent to stand trial. The judge erroneously thought, and stated repeatedly, that the question of competency to stand trial was to be resolved by the jury. We have no choice but to reverse and remand for a new trial.

Robertson was committed to the state hospital for a pre-trial mental examination. The report, filed on June 10, 1987, concluded he was capable of cooperating effectively with his attorney. On August 7,1987, the two lawyers who had been appointed to defend Robertson moved to suspend activity in the case and submitted affidavits to the effect that Robertson visualized the issues in his case in a manner incomprehensible to reasonable persons, and that he was hallucinating and unable to assist the lawyers in defending him.

A pre-trial hearing was held to consider several motions, one of which was the motion to suspend activity in the case. Dr. Paula Lynch testified she examined Robertson at the state hospital. She had access to records of other medical facilities, one of which concluded Robertson was schizophrenic and that he had been taking Thorazine, a major tranquilizer, and that Navane, an anti-psychotic drug had been prescribed for him. She did not interview Robertson’s family. She found him to be virtually symptom free and concluded he was competent at the time of her evaluation of him. At the close of the hearing, the court denied the motion to suspend activity.

Counsel for Robertson then took Dr. Lynch’s deposition pursuant to a court order. They asked her whether she had been hospitalized for any condition other than childbirth, and she refused to answer, citing the fifth amendment. At a pre-trial hearing on October 5, 1987, counsel asked the court to hold Dr. Lynch in contempt for her failure to respond or to strike her testimony from the record. The prosecutor said he had no objection to striking Dr. Lynch’s testimony and that he had no intention of calling her as a witness-at the trial. The court refused to strike the testimony, noting that Dr. Lynch’s testimony had been at the request of the defense.

Also at the October 5 hearing, counsel presented testimony by Robertson’s parents to the effect that Robertson had had mental problems, and tendencies toward violence, since his high school days. They also testified about periods of hospitalization for mental illness Robertson had undergone in Mississippi. Dr. Douglas Stephens testified he had interviewed Robertson on several occasions and had concluded he suffered from paranoid schizophrenia and was unable to assist counsel in his defense.

At the conclusion of the hearing, the court denied the motion to suspend the proceedings due to Robertson’s inability to communicate effectively with his counsel. The court stated it would be for the jury to decide if Robertson had a defense of mental defect. The prosecutor then asked the court to make a finding whether Robertson could communicate adequately with his attorneys. The court refused, again stating it was for the jury to decide. As abstracted by the appellant, the discussion was:

Mr. Gibson [the prosecutor]: Could I ask the court to make a finding as to whether or not Mr. Robertson is able to communicate adequately with the attorneys?
The court: No, that would be making a ruling. It’s for the jury to determine his condition.
Mr. Gibson: I’m talking about his fitness to proceed.
The court: We’re going to proceed.
Mr. Gibson: In other words, the Court is so finding he is.
The court: Fit to proceed. The jury has certain responsibilities, and that’s what they’re going to do.
Mr. Haddock [defense counsel]: The Court’s ruling is, if I understood the Court correctly, that it’s a jury question for them to determine whether or not he has present abilities to effectively assist counsel in his defense?
The court: Well, no, I’m ruling that it’s for the jury to determine or not whether he was able to conform his actions to the requirements of the law on this alleged date.

Although the appellant did not abstract the remainder of the court’s remarks, they are quoted accurately in the argument portion of his brief, and at page 5. of the state’s brief it is acknowledged that the court stated just after the discussion quoted above that the court was not making “any ruling” as to Robertson’s mental condition. The court’s statement continued as follows:

Now, by finding that, when the jury finds that they’ll be taking care of all these ancillary matters. Now, they can find whatever they find to be the facts, but I’m not going to make any rulings as to his mental condition and his abilities to consult with anybody or help anybody.

Throughout the pre-trial proceedings and during the trial, Robertson, against the advice of his counsel, insisted on making statements to the court, some of which could only be characterized as bizarre. He referred to various agencies of the federal government such as the CIA, the NSC, and the FBI, and demanded that the records kept on him by these agencies be furnished to him.

Toward the conclusion of the trial, Robertson insisted on making a statement before the jury. His counsel objected and renewed the motion to suspend the proceedings on the ground that Robertson was incapable of assisting in his defense. The prosecutor commented that the court was competent to determine whether Robertson was able to assist his counsel. The court denied the motion and again stated it would be for the jury to determine whether Robertson was competent.

The defense presented testimony of Dr. Stephens as well as testimony of Dr. Donald Gold, a psychiatrist who had visited with Robertson and studied his case while Robertson was hospitalized in Memphis for a severe burn. Dr. Gold testified that Robertson was schizophrenic and that the only way he could help his counsel would be by “overtly demonstrating to the world just how bizarre and confused he is.” After Dr. Gold’s testimony, Robertson’s counsel renewed the motion to suspend the proceedings. Robertson stated he wanted to exercise his first amendment right, presumably to testify. The court said: “You want to continue, Mr. Robertson?” Robertson replied affirmatively, and the court said: “All right, the trial will continue. Your motion is overruled. Denied, Mr. Haddock.”

1. The court’s duty

It is the duty of the court to rule whether an accused is competent to stand trial. The statute, Ark. Code Ann. § 5-2-309(a) (1987) provides: “If the defendant’s fitness to proceed becomes an issue, it shall be determined by the court.” In Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852 (1980), 459 U.S. 1020 (1982), we held it was error to leave the matter to the jury. See Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980); Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

The court in this case proceeded correctly to a point. There was no error in refusal to suspend the proceedings after the pretrial evaluation and hospital report and after Dr. Lynch’s testimony. Nor was there any necessity to obtain a reevaluation of Robertson each time his counsel moved to suspend activity in the trial. All the court was required to do, if he remained convinced that Robertson was and remained fit to stand trial, was make that ruling. Instead, he said again and again that it was a matter for the jury to decide.

The state points out that by continuing with the trial, the court could be inferred to have made the ruling. It is also argued that the question of fitness to proceed was not referred to the jury, as no instruction was given on that point. We cannot agree with those arguments. If the court thought the question was one for the jury, continuing the trial was necessary in order to let them decide the issue. Both defense counsel and the prosecutor clearly understood the issue of fitness to stand trial was for the court to determine, and that explains the fact that neither side offered an instruction on the matter. But absence of such an instruction does not cure the court’s misunderstanding that by deciding the general issue of Robertson’s competency the jury would be deciding the “ancillary” matter of his fitness for trial.

As we said in Gruzen v. State, supra, “The fact that there was a great potential for prejudice in the court’s failure to rule on the issue may be easily demonstrated, if the mere failure to make a ruling cannot be said to be prejudicial in and of itself.” 267 Ark. at 389, 591 S.W.2d at 347. Here, each time the issue was raised, there was additional direct evidence which could have borne on the court’s decision whether Robertson was fit to stand trial. The prejudice is obvious.

2. Dr. Lynch and the Fifth Amendment

Robertson has raised other issues. The only one likely to arise in the event of a new trial is whether the court should force Dr. Lynch to reveal her previous medical history or strike her testimony.

If the issue here were simply whether treatment of Dr. Lynch for psychiatric disorder is privileged, we might reach the same result as was reached by our court of appeals in Horne v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984). There it was held, based on Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982), that evidence of medical treatment, as opposed to physician-patient communications, could not be withheld because it was not covered by the physician-patient privilege found in A.R.E. 503. Here, however, Dr. Lynch, whether advisedly or not, relied on her fifth amendment right not to incriminate herself.

The federal appellate courts have wrestled with whether the testimony of a witness must be stricken where, for example, upon cross-examination the witness refuses to answer questions citing the fifth amendment privilege. The cases hold that the ruling is within the trial court’s discretion. United States v. Seifert, 648 F.2d 557 (9th Cir. 1980); United States v. Star, 470 F.2d 1214 (9th Cir. 1972). See also United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963), cert. denied 375 U.S. 822 (1963). The testimony should be stricken if failure to answer deprives the party questioning the witness of the right to test the truth of the witness’s direct testimony, as opposed to a collateral matter. United States v. Cardillo, supra.

Dr. Lynch’s testimony was not before the jury. We find no error in the court’s refusal to strike the testimony. The answers to the questions she was asked about her personal mental history would not have refuted her previous report and direct testimony about Robertson’s condition. Rather, the answers could only have been viewed as affecting the weight of her previous, direct testimony.

Reversed and remanded.

Hickman, J., concurs.

Purtle and Glaze, JJ., dissent in part.

Darrell Hickman, Justice,

concurring. I concur to update the history of our review of capital cases contained in Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986) (Hickman, J., concurring), and Ruiz and Van Denton v. State, 280 Ark. 190, 655 S.W.2d 441 (1983) (Hickman, J., concurring).

Since Fretwell, we have reviewed the imposition of the death sentence in thirteen cases. We have upheld the death penalty in seven cases: Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988); Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988), petition for postconviction relief pending; Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied,_U.S__, 108 S.Ct. 202 (1987); Hill v. State, 289 Ark. 387, 713 S.W.2d 233, cert. denied, 479 U.S. 1101, 107 S.Ct. 1331 (1986), petition for post-conviction relief denied, 292 Ark. 144, 728 S.W.2d 510 (1987).

We also upheld the death penalty in the unusual case of Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988). Ronald Gene Simmons received the death penalty but waived his right to appeal his sentence. Franz attempted to bring an appeal as next friend. We determined Franz had no standing and affirmed Simmons’ competency to waive his appeal.

We have reversed and remanded the following cases in which the death penalty was imposed: Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).

In Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), we found an error in the sentencing phase only. We vacated the death sentence and remanded to allow either the imposition of a life sentence or the impanelling of a new sentencing jury.

We also found error in the sentencing phase in Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987). We had previously upheld Pickens’ death sentence, 261 Ark. 756, 551 S.W.2d 212 (1977), cert. denied, 435 U.S. 909 (1978). But the Eighth Circuit reversed due to ineffective assistance of counsel. Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983). On retrial, Pickens received the death penalty again, but we found error and reversed.

None of the above cases have been presented on a second appeal, nor have Penelton v. State, 277 Ark. 225, 640 S.W.2d 795 (1982), and Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982), which we reversed and remanded seven years ago. We reversed and remanded in Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985), the first time it was before the court, but the case was affirmed on its second appeal. Hendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (1986).

In the seven cases since Fretwell that have survived our review, six of the defendants are white and one is black. (Juries in these 13 cases imposed the death penalty on seven black men and six white men.)

During the period from May 12,1986, to this date, we have reviewed 28 cases in which capital murder was the finding and the death penalty sought. The death penalty was imposed in 13 cases and life imprisonment without parole was imposed in the remaining 15.

Some cases are beginning to survive the gauntlet of the federal district court and the Eighth Circuit Court of Appeals. Habeas corpus relief has been denied in Hayes v. Lockhart, 852 F.2d 339 (8th Cir. 1988); Hulsey v. Sargent, 821 F.2d 469 (8th Cir.), cert. denied, _ U.S. _, 108 S.Ct. 299 (1987), and Fairchild v. Lockhart, 675 F.Supp. 469 (E.D. Ark. 1987). But some cases seem to just disappear into the federal judicial machinery. For instance, in 1980 we affirmed the conviction of Eddie Lee Miller. Miller filed a habeas petition in federal district court in 1981. Eight years have passed and there has been no ruling on the petition.

Other cases have met with similar delays. The habeas petition of John Edward Swindler has been pending in federal court since 1981; Clay Anthony Ford since 1982; Darrell Wayne Hill since 1983; Ricky Ray Rector since 1984; and Wilburn Anthony Henderson since 1984. The question has to be asked: why have these Arkansas cases been neglected or delayed? Arkansas deserves an answer.

Habeas relief has been granted in Simmons v. Lockhart, 856 F.2d 1144 (8th Cir. 1988), and Singleton v. Lockhart, 653 F.Supp. 1114 (E.D. Ark. 1986).

Two cases merit special mention. In 1986 the U.S. Supreme Court vacated the Eighth Circuit’s decisions in Ruiz and Van Denton v. Lockhart, 754 F.2d 254 (8th Cir. 1985), and Woodard v. Sargent, 753 F.2d 694 (8th Cir. 1985), vacated, 476 U.S. 1112 (1986). The Eighth Circuit had reasoned that death qualified juries are unconstitutional, but the Supreme Court later held that they are not. See Lockhart v. McCree, 476 U.S. 162 (1986).

Nevertheless, after those decisions were vacated, the Eighth Circuit set aside the death sentences again, reasoning.that it is unconstitutional to use pecuniary gain as an ággravating circumstance in a robbery-murder case (known as the “double counting” argument). Ruiz and Van Denton v. Lockhart, 806 F.2d 158 (8th Cir. 1986); Woodard v. Sargent, 806 F.2d 153 (8th Cir. 1986). That was also the reasoning used to reduce the death sentence to life imprisonment in Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013 (1985). But in the recent case of Lowenfield v. Phelps, _ U.S._, 108 S.Ct. 546 (1988), the Supreme Court overruled the Eighth Circuit’s position on the issue.

After thirteen years of court review, the death sentence still remains unexecuted. I have kept these figures for my own information as well as for anyone else interested in how the law of capital punishment fares. One safe conclusion can be made: there seems to be no end to judicial review of these decisions.

ADDENDUM

In the following cases this court affirmed the appellants’ death sentences:

Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988). (Starr raped his 76 year old victim and killed her with an iron pipe.)

Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988). (Whitmore stabbed his victim, cut her throat and took a small amount of money from her house.)

Franz v. State, 296 Ark. 181, 754 S.W.2d 839(1988). (Franz, as next friend, appealed the death sentence of Ronald Gene Simmons. Simmons killed two people, wounded four and took one hostage during a shooting spree in Russellville.)

Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). (Gardner strangled a married couple and their daughter during the course of robbing their home.)

O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988),petition for postconviction relief pending. (O’Rourke murdered his parents.)

Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied,_U.S__, 108 S.Ct. 202 (1987). (Snell murdered a pawnshop owner in the course of a robbery.)

Hill v. State, 289 Ark. 387, 713 S.W.2d 233, cert. denied, 479 U.S. 1101, 107 S.Ct. 1331 (1986), petition for post-conviction relief denied, 292 Ark. 144, 728 S.W.2d 510 (1987). (Hill escaped from prison, took a family hostage, and later killed a state trooper.)

The court found error in the sentencing phase in Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988) (aggravating circumstance “especially heinous, atrocious or cruel” unconstitutionally vague), and in Pickens v. State, 292 Ark. 632, 730 S.W.2d 230 (1987) (evidence of the appellant’s behavior subsequent to the crime should have been considered as a mitigating factor.)

The court has reversed the following death penalty cases, but they have not been presented again on appeal: Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987).

In the following cases, capital murder was charged and found and though the death penalty was sought, it was not imposed: Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986); Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986); Baker v. State, 289 Ark. 430, 711 S.W.2d 816 (1986); Rhodes v. State, rev’d and remanded, 290 Ark. 60, 716 S.W.2d 758 (1986); Hendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (1986); Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987); Rose v. State, rev’d and remanded, 294 Ark. 279, 742 S.W.2d 901 (1988); Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988); David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988); Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988); McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988); Sellers v. State, 295 Ark. 489, 749 S.W.2d 669 (1988); Allen v. State, 296 Ark. 33, 751 S.W.2d 347 (1988); Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988); Bowden v. State, rev’d and remanded, 291 Ark. 160, 761 S.W.2d 148 (1988).

Tom Glaze, Justice,

dissenting in part. I respectfully dissent from the majority’s holding that the trial court did not err in refusing to strike the testimony of Dr. Lynch after she asserted the fifth amendment. Dr. Lynch simply had no fifth amendment right to assert, yet the majority opinion allows a witness the right to refuse to testify even though that witness has no legal basis to do so.

Prior to trial, appellant’s counsel obtained information that Dr. Lynch had suffered from psychiatric problems; thus, counsel requested the court to order Dr. Lynch to divulge her medical records which might reflect her professional competence and ability to testify. Both the state and defense counsel agreed to an order to require Dr. Lynch to be deposed and for her to bring her medical records to the deposition. At the subsequent deposition, Dr. Lynch, invoking the fifth amendment, refused to provide her medical information. Appellant’s counsel moved to have Dr. Lynch held in contempt, or in the alternative, to strike her prior testimony concerning appellant’s competency. Although the prosecutor stated that he had no objection to the striking of Dr. Lynch’s testimony, the trial court still refused to grant the motion to strike or to hold Dr. Lynch in contempt.

Obviously, Dr. Lynch’s testimony was an important part of the state’s case, especially concerning appellant’s fitness to proceed to trial. The state was quite aware of the problem it had regarding Dr. Lynch as a witness because it decided not to call her at trial.

Clearly, the fifth amendment operates only where a witness is asked to incriminate himself — in other words, to give testimony which may possibly expose him to a criminal charge. Ullmann v. United States, 350 U.S. 422 (1956). Its [the fifth amendment’s] sole concern is to afford protection against the danger to a witness of being forced to give testimony leading to the infliction of penalties affixed to criminal acts. Id.

Here, defense counsel was only seeking information concerning Dr. Lynch’s prior medical history so as to impeach her testimony. In other words, the defense’s quest for information had nothing to do with exposing Dr. Lynch to a criminal charge. In my view, the majority court’s erroneous application of the fifth amendment has caused the court to reach an incorrect result, leaving the impression that the fifth amendment can be invoked to refuse to testify even in instances where the fifth amendment was never intended to apply. It is my opinion that a witness cannot justify his or her refusal to testify based upon the fifth amendment when he or she clearly has no grounds to assert that amendment.

The issue here, which the majority chooses to ignore, is whether Dr. Lynch’s medical records and history (which purportedly reveal a psychiatric disorder) are privileged. In Horn v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984), the court of appeals, in accordance with Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982), correctly held that the physician/patient privilege found in A.R.E. 503 only protects confidential communications between doctor and patient, as opposed to evidence of medical treatment. In the instant case, Dr. Lynch was not asked about confidential communications between herself and her doctor, but was only asked about the fact of treatment. By refusing to compel her to answer the questions or, in the alternative, to strike her testimony, the trial court has effectively denied the appellant the right to cross examine this important expert witness. This was clear error.

Purtle, J., joins this dissent.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Dorenda Gail FRETWELL v. STATE of Arkansas
    RC 89-7
    765 S.W.2d 576
    Supreme Court of Arkansas
    Opinion delivered February 27, 1989

      Jack M. Lewis, for appellant.
    No response.
   Per Curiam.

Petitioner, Dorenda Fretwell, by her attorney, Jack M. Lewis, has filed a motion for rule on the clerk. Her attorney admits that the record was tendered late due to a mistake on his part in posting the filing date on his calendar.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


text:
    Michael O’ROURKE v. STATE of Arkansas
    CR 87-17
    765 S.W.2d 916
    Supreme Court of Arkansas
    Opinion delivered February 27, 1989

      Jeff Rosenzweig, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner Michael O’Rourke was convicted of the capital murder of his parents and sentenced to death by lethal injection. We affirmed the conviction. O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988). The petitioner now seeks permission to proceed in circuit court for post-conviction relief pursuant to Criminal Procedure Rule 37.

The petitioner’s chief allegations claim that his counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In • making a determination on a claim of ineffectiveness,the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

The petitioner first alleges that his counsel was ineffective for not introducing any evidence in mitigation during the penalty phase of the trial. At trial, the defense maintained that the petitioner did the crime but that he was not responsible because of mental disease or defect. Both the prosecution and the defense introduced evidence on that point. After the defense was rejected and the jury returned a guilty verdict, neither party put on any evidence of aggravating or mitigating circumstances. The state did not argue against mitigation during the punishment phase but did argue as one aggravating circumstance that the petitioner murdered his parents for pecuniary gain. The defense argued that the petitioner did not deserve the death penalty because of his extreme mental illness. The petitioner claims that his attorney was ineffective by simply arguing against the death penalty rather than presenting evidence in mitigation. During the guilt phase of the trial the only witness for the defense was a psychologist who testified that in his opinion the petitioner was too mentally disturbed at the time of the crime to realize the criminality of his conduct. If other witnesses were available, the burden is on petitioner to state specifically who the potential witnesses were and what evidence they would have given, and to demonstrate that the defense suffered actual prejudice by their absence such that he was denied a fair trial, the outcome of which is likely to have been different. See Strickland v. Washington, supra. As the petitioner has failed to show what other evidence the defense could have offered which would have changed the outcome of the trial, he has not met that burden.

It is true that in Neal v. State, 274 Ark. 217, 623 S.W.2d 191 (1981), we found that diminished mental capacity has different significance in the determination of guilt and in the imposition of sentence once guilt has been determined. We went further in Neal and found that in that case counsel was ineffective for failing to put on evidence of diminished mental capacity during the penalty phase of trial, even though such evidence was presented in the guilt phase. The distinction between Neal and petitioner’s case is that in Neal there was additional evidence of the appellant’s diminished mental capacity other than that already introduced, and the closing statement was brief and failed to emphasize the significance of the appellant’s diminished mental capacity. In this case, the petitioner has failed to show any evidence that could have been presented but was overlooked. Moreover, the petitioner’s attorney pleaded during the penalty phase that his client not be put to death because of his mental disorder. The petitioner has not shown that his attorney’s performance was deficient.

The petitioner next claims that his attorney was ineffective for failing to object prior to trial on the ground that the petitioner was incompetent to stand trial and in failing to offer evidence to support the objection. The petitioner also suggests that the court should have ordered a competency hearing sua sponte. The petitioner notes that his trial was delayed for three years due to his insanity, that he had not communicated with his attorney for months before the trial and that he attended the trial in short pants and bare feet. The petitioner states that his attorney should have testified as an officer of the court that his client refused to communicate with: him.

Soon after the petitioner was charged he notified the court that his defense would be not guilty by reason of mental disease or defect. The trial court ordered that he be evaluated and on November 23, 1983, four months after the murders, the State Hospital submitted a report stating that the petitioner was incompetent to stand trial. The trial court committed the petitioner to the State Hospital for treatment. On July 31,1983, the State Hospital notified the trial court that the petitioner was fit to proceed to trial. On December 13, 1984, petitioner’s counsel requested a hearing on the petitioner’s fitness, and the court ordered the petitioner to the State Hospital for reevaluation. On January 21, 1985, a hearing on the petitioner’s fitness was held and a psychologist testified for the defense that the petitioner was unable to assist his. attorney in his defense. A psychiatrist from the State Hospital agreed, testifying that the petitioner’s assistance to his attorney would be severely compromised by the fact that the petitioner used paranoid beliefs in deciding whether to volunteer information to his attorney. The trial court found that the petitioner was unable to assist in his defense, and he was again committed to the State Hospital. On January 19,1986, the State Hospital notified the trial court that the petitioner was fit to proceed. In February 1986, the petitioner wrote the trial court, stating that he was competent and asking to proceed to trial.

On August 18, 1986, the defense again contended that the petitioner was not fit for trial and asked for further evaluation. The court ordered two physicians to examine him; they recommended that the petitioner be evaluated once again at the State Hospital. On September 19, 1986, after the evaluation was completed, the State Hospital submitted a report finding that the petitioner was fit to proceed to trial.

A person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult counsel and to assist counsel in preparing his defense, may not be subjected to a trial. Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986). In this case, the defense vigorously pursued an insanity defense and throughout the proceeding sought to have the petitioner declared incompetent to stand trial. Obviously a point came where trial counsel felt that his efforts to that end were futile and the trial should proceed. Even if the petitioner’s counsel had testified and had had the defense psychologist testify at a last minute competency hearing, it is not probable that the result would have been different. At such a hearing the psychiatrists at the State Hospital would no doubt have opined that the petitioner was fit to stand trial and the psychologist for the defense would have disagreed. Moreover, there is nothing provided to support the assertion that counsel should have sought additional psychiatric testimony. The trial court was aware of the lack of cooperation by the petitioner as it was also aware that previously the petitioner himself had asked to proceed with the trial. The petitioner has failed to show that his counsel’s conduct deprived him of a fair trial.

The petitioner contends that his counsel was ineffective for failing to object to the order and form of psychiatric testimony. He states that his counsel should have objected to the state’s calling one of the psychiatrists at the State Hospital in its case-in-chief before the defense had embarked upon a strategy. Although the petitioner asserts that this allowed the state to unfairly bolster its case, petitioner makes no real statement of prejudice. Furthermore, the defense had stated its intention to pursue a defense of insanity.

The petitioner claims next that his attorney prejudiced him by stating in opening argument that he was not sure whether his client would testify. He contends that the same prejudice resulted when his counsel elicited on cross-examination of the state’s psychiatrist his opinion that if the petitioner was called as a witness he would probably not cooperate. In closing argument, counsel said he wished he could have gotten his client to testify. Counsel was obviously trying to show that his client was being silent not in an effort to hide something, but because he was so mentally disturbed that he could not or would not cooperate in his own defense. Again, as it was purely a matter of strategy, the allegation provides no basis for relief under Rule 37.

The petitioner makes the conclusory claim that his attorney had no real strategy. The record clearly shows that the defense was based on insanity and a plea for mercy. Therefore, the point is without merit.

The next allegation is that the petitioner’s counsel should have sought an accomplice instruction. The petitioner and Dennis Meadors, the petitioner’s roommate, killed the petitioner’s parents. Meadors testified to the way the murders happened and claimed that the petitioner forced him to participate. The petitioner argues that the lack of an accomplice instruction severely prejudiced the petitioner although he does not say how. A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. Ark. Code Ann. § 16-18-111 (e)(1)(1987) [Ark. Stat. Ann. § 43-2116 (Repl. 1977)]. The state presented ample evidence tending to connect the petitioner to the crime. A shop owner testified that the petitioner sold her coins that had been stolen during the murder and the petitioner was also identified as being present when a handgun used in the murders was purchased by Meadors. In light of the evidence, the lack of an accomplice instruction did not prejudice the petitioner.

The petitioner was charged with three forms of capital murder. He was charged with killing two persons in the same episode, with committing murder in the course of a robbery, and with entering into an agreement to commit murder. See Ark. Code Ann. § 5-10-101 (a)(l)(3)(7) (1987) [Ark. Stat. Ann. § 41-1501(l)(a)(c)(g) (Repl. 1977)]. The petitioner claims that his counsel should have forced the state to narrow its allegations or that counsel should have requested jury forms that would allow the jury to specify of which charge the petitioner was found guilty. The form only required a finding of guilty or not guilty. The petitioner claims that there was insufficient evidence to convict him of the charge of hiring someone to commit murder. However, because there was ample evidence to sustain the first two theories, the petitioner has failed to demonstrate prejudice. Moreover, the allegation constitutes an attack on the sufficiency of the evidence. Such a challenge presents a direct, rather than collateral, attack on the judgment and must be made at trial and on direct appeal. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Furthermore, a petitioner may not reach the issue of the sufficiency of the evidence by alleging ineffective assistance of counsel.

The petitioner makes the conclusory allegation that his attorney failed to conduct a proper voir dire of the jury. He states that counsel failed to question the jury sufficiently on insanity, the death penalty, and homosexuality, but he does not state what prejudice arose from the failure to explore any particular area in voir dire. On direct appeal we held that the record reflects that a fair and impartial jury was seated by the trial judge, and the allegation offers no facts from which a different conclusion could be reached now.

The petitioner alleges that his counsel was ineffective in failing to make an adequate record to support his motion for a change of venue. On appeal we held that the affidavits supporting his motion failed to show the requisite prejudice because they failed to allege the prejudice was county-wide, and while the affiants alleged prejudice in the Dardanelle district, their later testimony belied their earlier allegations. The petitioner names no one that could have alleged county-wide prejudice. As stated, we found on appeal that the jury panel was fair and impartial.

At various times in argument the petitioner’s counsel referred to petitioner as a monster and compared him to Jack the Ripper, the Mad Hatter, and Lizzie Borden. A reading of the arguments in their entirety reveals that counsel was simply trying to convince the jury that the petitioner was so insane that it would be merciless to put him to death. Other learned counsel might debate the trial tactics used, but lack of success with trial tactics does not equate with ineffective assistance of counsel. See Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983).

The petitioner next claims that his attorney was ineffective in not objecting to the prosecutor’s statement in his closing argument during the penalty phase that if the jury finds aggravating circumstances which outweigh the mitigating circumstances, they should sentence him to death. While Ark. Code Ann. § 5-4-603(1) (1987) [Ark. Stat. Ann. § 41-1302(1) (Repl. 1977)], actually provides that to sentence a defendant to death, the jury must also find that the aggravating circumstances must justify a sentence of death, the petitioner has failed to prove that he was prejudiced by the omission. It is unlikely that the addition of the omitted phrase would have resulted in a different sentence.

The petitioner alleges that the Arkansas death penalty statute is unconstitutionally mandatory and that his attorney was ineffective for not making an objection on that ground. This precise argument has been rejected to us. Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987). Therefore, the petitioner’s attorney cannot be said to have been ineffective for failing to pursue the argument.

The petitioner claims that his counsel was ineffective for not moving for a dismissal because his ability to defend himself was compromised from the delay due to his incompetence. Although the petitioner alleges prejudice, he does not state what that prejudice is or how the delay affected his ability to defend himself. It is incumbent on the petitioner to show actual prejudice so serious as to deprive him of a fair trial. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985).

The petitioner states that under the doctrine of comparative review, his death sentence cannot stand. The petitioner’s accomplice received a sentence of ten years probation in exchange for his plea of guilty and testimony in the petitioner’s case. However, the evidence against the petitioner, which showed that he brutally murdered his parents for insurance proceeds, would clearly justify a sentence of death when compared with other cases in which the death penalty has been allowed to stand. Moreover, this is an issue that should have been raised at trial or on appeal. Since it was not and is not so fundamental as to render the conviction void, we will not consider it. White v. State, 290 Ark. 77, 716 S.W.2d 203 (1986).

The petitioner argues that the death sentence rendered is illegal as violative of the eighth amendment “double counting prohibition.” This argument was rejected on direct appeal. Rule 37 does not provide an opportunity to reargue points settled on appeal. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981).

The petitioner next claims that the Arkansas statutory definitions of capital and first degree murder unconstitutionally overlap and give the prosecutor unbridled discretion. These arguments should have been made at trial or on appeal and are not sufficient to void the conviction. White v. State, supra.

The petitioner argues that the jury ignored the evidence in mitigation and, therefore, the death sentence may not stand. This is a challenge to the sufficiency of the evidence and is a direct, rather than a collateral, attack on the conviction. Such attacks are not cognizable under Rule 37. McCroskey v. State, supra.

The petitioner also claims that his attorney should have asked for an additional instruction on the affirmative defense set forth in Ark. Code Ann. § 5-10-101(b) (1987) [Ark. Stat. Ann. § 41-1502(2) (Repl. 1977)], which states that it is an affirmative defense to any prosecution under the felony murder provision in section 5-10-101 (a)(1) for an offense in which the defendant was not the only participant that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid its commission. There would have been no rational basis for this instruction since there was absolutely no evidence that the petitioner did not kill his parents or aid in the commission of the murders.

The petitioner has made two allegations which require an evidentiary hearing. He claims that he was prejudiced by his counsel’s failure to ask for instructions on lesser included offenses of capital murder. While there was sufficient evidence to convict the petitioner of capital murder, the instructions only gave the jury the option of acquitting the petitioner or convicting him of capital murder. Since there were no instructions on lesser offenses, a rejection of the insanity defense gave the jury no alternative but to find the required premeditation and deliberation or set the petitioner free. See Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). A court is not obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the petitioner of the offense charged and convicting him of the included offense. Ark. Code Ann. § 5-1-110(c) (1987) [Ark. Stat. Ann. § 41-103(3) (Repl. 1977)]. In this case the jury could have found that because of the petitioner’s mental disease or defect he was incapable of acting with premeditation and deliberation and, therefore, convicted him of second degree murder. Ark. Code Ann. § 5-10-103 (1987) [Ark. Stat. Ann. § 41-1503 (Repl. 1977)]. Therefore, the petitioner was entitled to instructions on lesser included offenses. Counsel of course may have had some reason in mind when he did not ask for instructions on lesser offense's; therefore, we grant permission for an evidentiary hearing in a circuit court to determine whether counsel was ineffective under the standard set out in Strickland v. Washington, supra, and our case law, in failing to request instructions on lesser included offenses.

The petitioner also alleges that his attorney should have objected to testimony that the petitioner invoked his constitutional right to counsel. The following took place during the state’s examination of Sgt. F. V. Kimery of the Arkansas State Police:

Q. (Prosecuting Attorney) Mr. Kimery, I believe that you have had some other contact with Mr. O’Rourke. Is that correct? Other than the initial investigation?
A. (By Kimery) Yes, sir, I talked to Michael O’Rourke on July 30.1 interviewed him as a suspect, and I believe you have a copy of that, on August 4, 1983.
Q. What did he tell you when you interviewed him as a suspect?
A. He stated that he did not want to make a statement at this time on the counsel of his attorney. As I recall, he had an attorney present.

The state also admitted a transcript of a taped conversation between the petitioner and Sgt. Kimery. The petitioner claims that inquiry and the admission of the taped conversation allowed the use of his silence and insistence on counsel as proof that he was not insane at the time of the crime in violation of Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle the United States Supreme Court held that the state may not use a defendant’s post-Miranda silence to impeach his trial testimony. In Wainwright v. Greenfield, 474 U.S. 284 (1986), the Court held that the state’s use of the defendant’s post-Miranda silence as evidence of sanity violated the defendant’s constitutional right to due process. In the petitioner’s case, as in Wainwright, the state argued in closing that the defendant’s invocation of his right to counsel was proof that the defendant was sane. Since the petitioner’s silence was used against him in that it was used to rebut his affirmative defense of insanity, the trial court should determine whether the petitioner’s counsel was ineffective for failing to object to the inquiry of Sgt. Kimery, to the closing argument, and to the admission of the transcript of the phone call.

Petition granted in part and denied in part.

Glaze, J., would grant only as to relief related to issue involving Wainwright v. Greenfield.


author: Per Curiam. Tom Glaze, Justice, John I. Purtle, Justice,

text:
    L.J. CAMPBELL v. STATE of Arkansas
    CR 89-36
    769 S.W.2d 730
    Supreme Court of Arkansas
    Opinion delivered March 3, 1989
   Per Curiam.

Petition for Writ of Prohibition is denied.

Glaze, J., concurs.

Purtle, J., dissents.

Tom Glaze, Justice,

concurring. Petitioner files a petition for writ of prohibition a week before trial and alleges the Newton County Circuit Court has violated his speedy trial rights. He files what might charitably be called a “partial transcript” which is certified by the Newton County Circuit Clerk. The partial transcript contains duplicate copies of the petitioner’s petition and motion to dismiss which he filed both in this court and the court below. Except for a copy of the information filed in this cause, the few other instruments contained in the circuit clerk’s transcript pertain to matters that are wholly irrelevant to his petition for writ of prohibition. In sum, the petitioner offers no transcript of any of the court proceedings held below and includes no docket sheet which reflects the events that have occurred in this case. There simply is nothing before this court that would allow it to do anything but deny the petitioner’s request for a writ.

John I. Purtle, Justice,

dissenting. The temporary writ of prohibition should be granted because it is obvious the time for a speedy trial has run. At most a temporary writ would delay a trial for the time being. However, a trial would needlessly cost the state and county a considerable amount of money.

The zeal to do justice can sometimes do much harm and it seems to me it has done so here. To cause a person the trouble and expense of a trial, and possibly a prison sentence, without good cause is surely an injustice. In my opinion such an injustice has been done in this case.

Petitioner was arrested on the pending charge on March 19, 1987 and posted bond. He was sentenced to the Arkansas Department of Correction on an unrelated charge on November 3,1987, and has been imprisoned continuously since that date. He has been incarcerated for more than fifteen months. Almost two years have elapsed since his arrest. He filed this petition for prohibition in this court on January 6, 1989. The record was tendered to this court on February 22, 1989.

I find no excludable periods. Therefore, the time has expired and the petition should be granted.


author: Jack Holt, Jr., Chief Justice. David Newbern, Justice, Jack Holt, Jr., Chief Justice.

text:
    George WILCOX d/b/a George Wilcox Construction Company v. William SAFLEY, Sr., d/b/a SAFLEY CONSTRUCTION COMPANY and American States Insurance Company
    89-42
    766 S.W.2d 12
    Supreme Court of Arkansas
    Opinion delivered March 6, 1989
    [Supplemental Opinion on Denial of Rehearing April 24, 1989.]

      Howell, Price, Trice, Basham & Hope, P.A., by: Carey E. Basham and Max Howell, for appellant.

      L. David Stubbs, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal involves the interpretation of Ark. Code Ann. § 17-22-101 (Supp. 1987). Jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c).

In 1982 appellee William Safley d/b/a Safley Construction Company was awarded a contract as the prime contractor for the construction of a sewer system in Faulkner County, known as the “Mayflower Wastewater Collection System.” Construction of the system required that the serviced area be dug up, lines installed, and trenches backfilled and graded level.

Appellant George Wilcox d/b/a George Wilcox Construction Company orally agreed with Safley to provide bermuda sod on a per yard basis for the job and place it on areas disturbed in the construction of the system. The agreed price was $2.32 per square yard of sod based upon an estimated need of 33,000.00 square yards.

At various intervals, Wilcox and his employees placed 34,015.58 square yards of sod on the job site. In addition, they did a small amount of seeding and sprigging. Wilcox received partial payment of $22,895.86 for this work; however, Safley refused to pay the balance due. Wilcox then filed suit against Safley for $31,556.31 — the balance due. Safley denied liability for this sum on the grounds that Wilcox was not a licensed contractor and, therefore, was not entitled to bring an action to recover the sum due under Ark. Code Ann. § 17-22-103 (Supp. 1987). Wilcox stipulated at trial that he was not licensed but alleged that he was not a contractor and, therefore, not required to be licensed. The trial court found that the failure of Wilcox to be licensed precluded him from maintaining an action to recover the balance due and entered judgment for Safley and American States Insurance Company. From this order, Wilcox appeals.

For reversal, Wilcox contends that the trial court erred in finding he was a contractor and, therefore, prohibited from maintaining an action. We agree and reverse and remand for proceedings consistent with this opinion.

Ark. Code Ann. § 17-22-101 (Supp. 1987) provides in pertinent part as follows:

(a) As used in this chapter, unless the context otherwise requires, “contractor” means any person, firm, partnership, copartnership, association, corporation, or other organization, or any combination thereof, who, for a fixed price, commission, fee, or wage, attempts to or submits a bid to construct, or contracts or undertakes to construct, or assumes charge, in a supervisory capacity or otherwise, or manages the construction, erection, alteration, or repair, or has or have constructed, erected, or repaired, under his, their, or its direction, any building, apartment, condominium, highway, sewer, utility, grading, or any other improvement or structure on public or private property for lease, rent, resale, public access, or similar purpose, except single-family residences, when the cost of the work to be done, or done, in the State of Arkansas by the contractor, including, but not limited to, labor and materials, is twenty thousand dollars ($20,000) or more.

Ark. Code Ann. § 17-22-103(a)(l) (Supp. 1987) provides in relevant part that any contractor who engages in the business of contracting without first having procured a license “shall be deemed guilty of a misdemeanor and shall be liable for a fine of not less than one hundred dollars ($100) nor more than two hundred dollars ($200) for each offense, with each day to constitute a separate offense.” In addition, Ark. Code Ann. § 17-22-103(d) provides that “[n]o action may be brought either at law or in equity to enforce any provision of any contract entered into in violation of this chapter.”

Code provisions imposing penalties for noncompliance with licensing requirements, such as §§ 17-22-101 and 17-22-103, must be strictly construed. Bird v. Pan Western Corp., 261 Ark. 56, 546 S.W.2d 417 (1977); Davidson v. Smith, 258 Ark. 969, 530 S.W.2d 356 (1975); Arkansas State Licensing Board for General Contractors v. Lane, 214 Ark. 312, 215 S.W.2d 707 (1948). Accordingly, if the language of such provisions is not clear and positive, or if it is reasonably open to different interpretations, every doubt as to construction must be resolved in favor of the one against whom the enactment is sought to be applied. Id. Where a provision is clear and unambiguous, the intention of the legislature must be determined from the plain meaning of the language of the provision. Klinger v. City of Fayetteville, 293 Ark. 128, 732 S.W.2d 859 (1987); Hinchey v. Thomasson, 292 Ark. 1, 727 S.W.2d 836 (1987).

The language of § 17-22-101 (a) is not clear and unambiguous. Under § 17-22-101(a), a contractor is a person who attempts to or submits a bid to construct, contracts or undertakes to construct, or manages the construction; erection, alteration, or repair of a building, apartment, condominium, highway, sewer, utility, grading, or any other improvement. In narrowly construing this language, we conclude that it is reasonably open to different interpretations, particularly when we examine the actions of Wilcox in sodding, sprigging, and seeding the land in question. These activities do not fall within the definition of construction, erection, alteration, or repair. Resolving doubt in his favor, which we must do, we find that Wilcox was not a contractor for purposes of § 17-22-101 (a) and is entitled to maintain an action to recover his losses.

Reversed and remanded.

Dudley and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. The majority opinion correctly states that we do not indulge in statutory interpretation when the meaning of the words used in the statute under consideration is clear. The statute, Ark. Code Ann. § 17-22-101 (Supp. 1987), defines “contractor” as, among others, one “who, for a fixed price . . . undertakes to . . . repair . . . any . . . grading. . . .” Contrary to the majority of the members of the court, I do not find these words to be ambiguous.

The first definition of the verb “repair” found in Webster’s Third New International Dictionary (Unabridged, 1968) is, “to restore by replacing a part or putting together what is torn or broken.” The same dictionary notes that the word “grading” is the gerund of “grade.” The third definition of the verb “grade” is “to reduce (as the line of a canal or roadbed) to an even grade whether on the level or in a progressive ascent or descent.” The third definition of the noun “grade” includes the following: “c. : level or elevation esp. of a land or water surface; as (1): a datum or reference level (2): the contemplated level of the ground when the work or erecting a building is completed: ground level. . . .’’The Random House Dictionary of the English Language (Unabridged, 1970) includes among the definitions of “grade” the following: “Building Trades. [T]he ground level around a building.”

771 S.W.2d 741

APRIL 24, 1989

Howell, Price, Trice, Basham & Hope, P.A., by: Carey E. Basham, for appellant.

L. David Stubbs, for appellee.

The majority opinion declares the statute to be ambiguous, but it does not say how or why. The opinion notes that the statute is subject to varying interpretations but does not say what they are. Given the dictionary definitions of the words used, it seems clear to me that the statute applies to one who contracts to replace damaged sod on ground torn up in a sewer project. Wilcox was repairing a grading. The only explanation given by the majority opinion is that “the actions of Wilcox in sodding, sprigging, and seeding the land ... do not fall within the definition of . . . repair.” I suspect that the reason no authority whatever is cited for that conclusion is that none exists. Therefore, I respectfully dissent.

Dudley, J., joins this opinion.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Jack Holt, Jr., Chief Justice.

On rehearing, Safley contends our decision effectively overrules Bird v. Pan Western Corporation, 261 Ark. 56, 546 S.W.2d 417 (1977). In support of this contention he states as follows:

In Bird, this court found that the legislative intent of the wording of the statute in question was meant to broaden, rather than narrow, the application of the statute. This court, however, declares that it must now narrowly construe the language of the statute.

In Bird, we addressed the issues of whether a person must contract with an owner or assume charge in a supervisory capacity to be considered a “contractor” under § 71-701 (Supp. 1975) (currently § 17-22-101). In reaching our decision, we first recognized that licensing statutes such as § 71-701 are to be strictly construed. We then held that because the legislature substituted the term “contractor” for “general contractor” and inserted the words “in a supervisory capacity or otherwise,” its intent was to broaden the application of the act so its application would not necessarily be limited to one who contracted with an owner or one who assumed charge in a supervisory capacity.

Whereas Bird recognized that the legislature broadened the application of our statute by inserting and substituting certain words in the statute, it did not change our long-standing rule that language contained in licensing statutes must be strictly construed. See Arkansas State Licensing Board for General Contractors v. Lane, 214 Ark. 312, 215 S.W.2d 707 (1948).

Petition denied.


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

text:
    Dorsey McRae WHITE v. STATE of Arkansas
    CR 88-134
    765 S.W.2d 949
    Supreme Court of Arkansas
    Opinion delivered March 6, 1989

      Baxter, Eisele, Duncan & Jensen, by: Ray Baxter and Karen Wallace Duncan, for appellant.

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

Dorsey McRae White, a 68 year old widower and cattleman, was convicted of six counts of possession of marijuana with intent to deliver and one count of criminal use of an illegal weapon, a sawed-off shotgun. Finding no error, we affirm the convictions.

The most important question we consider is whether the appellant was entrapped into committing the drug offenses. The Hempstead County sheriff’s office approached Vercina Lindsey, a black female, to cooperate in making a drug buy from Dorsey White. At the time, Ms. Lindsey had charges pending against her involving stolen credit cards and, according to her, she and the appellant had an ongoing sexual relationship. She agreed to cooperate with the sheriff’s office. Thedford White, a black Texarkana police officer, was recruited to serve as an undercover officer and to pose as a friend of Ms. Lindsey.

Officer White made five separate purchases of marijuana from the appellant over a six week period. The first sale took place on October 2 and involved about 1.5 ounces of marijuana for $200.00; the second sale occurred on October 14 and involved 6.2 ounces for $425.00; the third sale on October 22, 7.7 ounces for $550.00; the fourth sale on November 3, 6.9 ounces for $550.00; and the final sale on November 12, 1.75 pounds for $1,900.00.

The appellant told the jury that Vercina said her “friend” (Officer White) was a preacher who needed marijuana for medicinal purposes but could not be seen buying it. He testified that when Officer White first came to his home to ask for marijuana, he told him, “that if he was in that shape, he was a preacher ... I would try to help him.”

Officer White’s and Ms. Lindsey’s testimony was different. Ms. Lindsey said she merely told the appellant she had a friend who wanted some “dope.” She also testified that the appellant had given her marijuana for her own use. She said, “he would take some out of [a bag] and put it in a paper towel. I asked him why don’t you give me a little more, and he said no, it’s for somebody else.” (Italics supplied.) She also said that after Officer White made the first buy, the appellant called her and asked, “does your buddy need any more smoke, because I will get him some more.”

Officer White testified he never told the appellant he was a preacher or why he wanted the drugs, and he never heard Ms. Lindsey offer any explanation to the appellant. When he told the appellant he wanted marijuana, the appellant told him he could supply him with whatever he needed.

In addition, another officer testified that the appellant’s statement given after his arrest contained no explanation for the drug sales.

Was the appellant entrapped? The trial judge refused to rule as a matter of law that the appellant was entrapped. He gave the issue to the jury for a decision and he was right. Ark. Code Ann. § 5-2-209(b) (1987) defines entrapment as follows:

Entrapment occurs when a law enforcement officer or any person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

While we primarily focus on the conduct of the officers, the defendant’s conduct should not be disregarded. In Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978), we said the following:

[A] defendant’s conduct and predisposition, both prior to and concurrent with, the transactions forming the basis of the charges are still material and relevant, on the question [of] whether the government agents only afforded the opportunity to commit the offenses with which he is charged.

Entrapment does not occur when government agents merely afford the opportunity to do that which a person already has a predisposition to do. See Jackson v. State, 12 Ark. App. 378, 677 S.W.2d 866 (1984). Entrapment as a matter of law is established only if there is no factual issue to be decided. Ordinarily, it is a question of fact. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983).

The appellant had the burden of proving he was entrapped. He had to convince the jury that he was telling the truth and that Vercina and Officer White were not. He was the only one to testify that he was persuaded by the “sick preacher” story. Officer White and Vercina Lindsey said no such story was told to the appellant. The jury chose to believe Officer White and Vercina Lindsey.

The argument that the interracial relationship between the appellant and Ms. Lindsey had a bearing on the jury’s verdict ignores the state’s evidence. The appellant made five separate sales to Officer White involving about three pounds of marijuana over a six week period. Undoubtedly, the jury was convinced that the appellant was not a naive cattleman but was a dealer in drugs who deserved serious punishment.

The appellant also complains about his conviction for possession of 1 /7th of an ounce of marijuana with the intent to deliver. He argues the small amount is not enough to prove it was intended for a sale, citing Ark. Code Ann. § 5-64-401 (d) (1987), which states that at least an ounce must be possessed to create a presumption of intent to deliver. Furthermore, he claims that if it had been intended for sale, he would have included it in the last sale to Officer White.

The jury could consider the fact that the appellant had sold drugs in deciding he also intended to sell the small amount. That fact combined with the appellant’s testimony that the marijuana was not for his own use, and the testimony of officers that such quantities were sometimes sold in a form known as “dime bags,” supports the jury’s determination the marijuana was intended for sale.

Two arguments made by the appellant will not be considered because they were not preserved for appeal. The appellant claims repeated inflammatory remarks by witnesses and by the prosecuting attorney denied him a fair trial. Not one objection was made to the remarks about which the appellant complains. We will not consider an argument on appeal unless it is made below. See Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988); Ark. Code Ann. § 16-91-113(b)(3) (1987). Appellate counsel, who did not defend Dorsey White at trial, makes a passionate argument about the conduct of the prosecuting attorney, but we are not convinced that any one statement or the cumulative statements were so flagrantly prejudicial that the trial court should have intervened. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

The same is true regarding the argument that the search warrant was defective. The search of the appellant’s home resulted in the seizure of the 1 /7th ounce of marijuana and the sawed-off shotgun. None of the arguments made on appeal were made to the trial court so we will not consider them.

Though the shotgun was not listed on the warrant, the trial judge ruled its seizure was proper, and we agree. The weapon is prohibited by law. Ark. Code Ann. § 5-73-104(a) (1987). The officer testified that discovery of the shotgun was inadvertent. An officer, who, in the course of otherwise lawful activity, observes the nature and location of things which he reasonably believes to be subject to seizure, may seize such things. A.R.Cr .P. Rule 14.4; see also Johnson v. State, 291 Ark. 260, 724 S.W.2d 160, cert. denied, _, U.S. _, 108 S.Ct. 101 (1987).

Essentially, the appellant lost his case to the jury. We find no properly preserved error that would warrant reversal.

Affirmed.

Holt, C.J., and Purtle and Newbern, JJ., dissent.

Jack Holt, Jr., Chief Justice,

dissenting. I do not agree with Justice Purtle that the appellant, Dorsey McRae White, was “entrapped” by law enforcement officials to commit six offenses relating to the sale of marijuana. The defendant was in the drug business and got caught. I do join him, however, in finding that the record is saturated with prejudicial remarks by the prosecutor which were not related to matters of evidence, but were injected into the trial for the obvious purpose of creating prejudice in the minds of the jury. In addition, I feel there is insufficient evidence to convict the defendant on the charge of possession with intent to deliver one-seventh ounce of marijuana since the record is devoid of any proof of intent to deliver.

As noted by Justice Purtle, the conduct of the prosecutor was sufficient to deny the appellant a fair trial. However, I limit my concern to the impact of the prosecutor’s prejudicial remarks to the jury in regard to sentencing of the defendant.

Under our criminal justice system, we call upon the jury to make findings of guilt and to assess punishment in the same proceeding, Ark. Code Ann. § 5-4-103 (1987), unless there is an exception which calls for bifurcation. See e.g., Ark. Code Ann. § 5-4-602 (1987) (dealing with capital felony murder cases). In evaluating the remarks made by the prosecutor during the course of the trial, we should view his comments in light of what effect, if any, they may have had upon the jury’s finding of guilt or innocence and also, what effect, if any, they may have had upon the assessment of punishment.

Since the evidence is overwhelming as to the appellant’s overall guilt, except for the sale of one-seventh ounce of marijuana, the comments of the prosecutor, set out in detail in Justice Purtle’s dissent, though prejudicial, should not require us to reverse and remand this case for retrial. However, when I see that the jury assessed the maximum period of confinement on each count of possession of marijuana with intent to deliver, including the charge of possession of one-seventh of an ounce, it is obvious that the remarks of the prosecutor had a telling effect on the jury in assessing punishment.

Although the trial court mitigated the sentences in part by ordering that three of the ten year sentences run concurrently with the other three, I do not feel its actions were sufficient under the circumstances. For this reason, I would order each sentence reduced to the minimum authorized by law. See Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987). Cases of prosecutorial abuse should not go untreated.

Newbern, J., joins this dissent.

John I. Purtle, Justice,

dissenting. I could not sleep tonight if I failed to dissent in this case.

Dorsey White is a 69 year old resident of Hempstead County; he has lived there since he was a teenager. He never had a criminal record until he was charged in this affair. Dorsey White is now serving what at his age could amount to a life sentence. It is my belief that these charges resulted from entrapment by the sheriff.

The appellant was sentenced to ten years each on six counts of sale or possession of marijuana with intent to sell. He was also sentenced to six years imprisonment for the offense of criminal use of prohibited weapons. Finally, he was fined $70,000. The weapons were handguns taken from his home in a search during the marijuana investigation. There was no evidence that he had ever intended to use the weapons for any illegal purpose. Indeed, the one gun which seemed to be illegal was a family heirloom.

Before getting into the question of entrapment, I wish to discuss certain prejudicial remarks made by the prosecutor. I believe they warrant a reversal of this case or at least a reduction to the minimum length of sentence required. The prosecutor’s misconduct commenced with the opening statement when he said:

The defendant is a well known man of mature years. He had lived in Hempstead County for a long time. He has never been convicted of a crime before. Certainly, not a serious crime, and I hope this isn’t a problem. ■

There was no evidence that the appellant had,been convicted of any crime, serious or otherwise. The prosecutor continued with the statement:

The defendant is white. The confidential informer is black. The drug problem doesn’t know those colors. I don’t think it will be a problem with you all. We talked about Ms. Lindsey, and I am sorry we had to use a criminal to get another criminal, but it takes a thief to make a thief sometimes. And that is better than letting it go.

Such remarks were not based on anything the prosecutor intended to prove but rather were made solely for the purpose of prejudicing the minds of the jury. There was no reason to emphasize that the informant was a young black woman and the accused was an older white man.

The remarks made here, and throughout the trial, were sufficient to deny the appellant a fair trial. In King v. State, 9 Ark. App. 295, 658 S.W.2d 434 (1983), the Court of Appeals reversed a case because the officer testified: “I was very well aware that he is a known narcotics dealer.” The Court of Appeals was simply following precedent set by this court in Dean v. State, 272 Ark. 448, 615 S.W.2d 354 (1981); and Sharron v. State, 262 Ark. 320, 556 S.W.2d 438 (1977). We have on many occasions held that when prejudicial and inflammatory remarks of a state’s witness or the prosecutor rise to the level of prejudice, an admonition to the jury to disregard the remarks will not suffice, and a new trial must be granted or the sentence reduced. Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987); and Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987).

Another one of the many instances during the trial, which in combination warrant a reversal or reduction, was when Thedford White, an “imported” officer from Texas, referred in the jury’s presence to: “About three major drug dealers and Dorsey White was one of those.” There was no evidence that Dorsey White was ever a major drug dealer. Indeed, according to the defendant’s testimony, the only drugs he ever sold were to Thedford White pursuant to the misrepresentation that Officer White was a minister and in need of the marijuana for medicinal purposes.

Many questions asked by the prosecutor did not relate at all to the sale of marijuana. One question elicited the following testimony from the main witness: “Cause I had been fooling around with Dorsey. . . I had been going to bed with him. I could get anything I wanted. He would give me food to take home. Anything I wanted.” Neither sex nor color were relevant to the question which was before this jury.

The prosecutor told the jury: “It is a sad, sad state of affairs when you masquerade marijuana sale in the guise of the good Samaritan, just trying to help the woman with her utility bills or food. That’s sad. But it’s sacrilege when you say you are doing it to help a preacher.” There had been testimony by the accused that the undercover agent had represented himself, or at least had been represented by Ms. Lindsey, as a preacher who needed to buy the marijuana for a chest problem.

Concerning the weapon, the prosecutor said, “Well, he had an illegal weapon for years. That weapon, if we believe him, is older than Ms. Lindsey is.” The prosecutor described the .22 revolver, the 12-gauge shotgun, the 9 millimeter pistol, and the 12-gauge sawed-off shotgun. He then stated:

When you deal with the kind of people a dope dealer deals with you have a lot of guns because you need more protection than the rest of us. The sawed-off shotgun, just like Tommy Pope told you, is just like something they see in the drug case a lot. You can handle it in short quarters and it spreads everywhere. That’s why its illegal, because there is no legitimate purpose for it.

There was not one bit of evidence that the appellant had ever used any of the guns for anything but legal purposes. Some of them were heirlooms, others were no doubt for his own protection in his home.

Most prejudicial of all was this statement:

Men like Dorsey White in the past time sold men and women’s bodies. In the present, they sell their minds and their emotional well-being. That’s the kind of a man he is . . . That’s the kind of thing we have got to stop.

The chief reason for reversing the appellant’s conviction is that Dorsey White was, in my opinion, entrapped by the sheriff and his agents. It is necessary to examine some of the circumstances surrounding this case. It must be remembered that Vercina Lindsey is the principal actor here. She had been charged and convicted of a felony concerning credit cards and was charged and convicted a second time; prior to being sentenced, she inquired of the sheriff whether there was anything she could do to keep from going back down to the Department of Correction. The exact date of her second conviction is not known, but she stated:

My last conviction was five or six months ago. I did not do any time for that because I made a deal to keep from going. I had a choice between serving my sentence, and I made a deal. I did that by helping the police with trying to bust the dope. I made that deal with Don Worthy. I told him that I could help him out with the dope dealers. He mentioned Dorsey White’s name in that conversation. At first he asked me if I could make a buy for him, and I told him I thought I could. The simple truth of the matter is that I never bought anything from Dorsey White before in my life. When Don Worthy requested that I see if I could make a buy from Dorsey White, I was not paid money to do it, I did it to save myself from going up. The result was that I did not spend any time for the charge that I was under. I did not get a probated sentence; it was throwed out. In order to fulfill my end of the bargain, I went in and talked to Dorsey and got a buy from him.

Ms. Lindsey was placed in contact with an undercover officer from Texas and together they approached the appellant. On the first trip the appellant did not sell any marijuana. Neither did he promise to get them some. His testimony was that Ms. Lindsey introduced Officer White as her boyfriend or “dude.” The officer stated he was a minister and needed marijuana for a breathing problem. After several contacts, the appellant did produce a small amount of marijuana. These parties kept coming back and over a period of five weeks persuaded him to sell them five different amounts of marijuana. They tried to get him to sell five pounds at the last meeting, but he was able to come up with less than half that amount. On that same date, they searched his house and found a residue of marijuana which was measured at 1/7 of one ounce. For this marijuana he was found guilty of an additional count of possession with intent to sell and sentenced to another ten years and fined an additional $10,000.

The undercover officer testified that when he first met the appellant he was with Vercina Lindsey and that “[s]he told me that he was a major drug dealer.” Vercina Lindsey’s testimony was not at all in keeping with this version of events. Her testimony was a denial of Officer White’s testimony and a statement that she had never known Dorsey White to sell marijuana. Apparently the state feels it can bootstrap this “set-up” deal into qualifying the appellant as a major drug dealer. There is no evidence that he had ever been a drug dealer before this time, and all of the evidence shows that these were the only drugs he ever sold. Therefore, it seems to me that such a statement was completely unjustified and that the officer, who had worked with Arkansas officers previously, should have known not to deliberately make such a prejudicial statement.

Ms. Lindsey further stated under oath that the appellant “had not in the past requested for me to find him buyers for marijuana. . . .IknewhewouldhavemarijuanaifIneededit.lt wasn’t a lot, but he would have a little bit of it.” Although some of her testimony was at the very least confusing, her bottom line was: “I never bought any marijuana from him. I do not know of him selling any prior to that time.”

It is a little strange, but the sheriff could not remember anything about the set-up. I cannot find from the abstracted testimony where the sheriff made any denial of the statements by Yercina Lindsey that she agreed to “set-up” the appellant for these drug buys. He “wouldn’t be surprised,” the sheriff said, if the state police paid Ms. Lindsey something for what she did. He could only say that he didn’t pay her anything at that time. The testimony of the informant was undisputed that she was working as an agent for the sheriff. Therefore, the sheriff is charged with knowledge of her statements that indicated she helped entrap the appellant. The reason the sheriff “went after” the appellant is not explained, but it is clear that the sheriff initiated the action. It is also clear that the appellant had never been known to sell marijuana before.

The appellant never denied that he procured the marijuana and delivered it to the police officers. However, he named the persons who supplied it to him and stated that he made no profit but simply charged the undercover agent the amount he had paid for it. On most of the occasions, the officers would either have to wait or come back while the appellant went to get the marijuana or arranged to have it delivered. The appellant was trying to help Vercina Lindsey and her “preacher friend.” It was the appellant’s duty to show entrapment, and I am persuaded that he did. See Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978).

As for the one-seventh ounce which was seized at the time of the appellant’s arrest, it was less than the “one ounce presumption” and this fact clearly supports the view that the substance was not held with the intent to deliver. Certainly there was not one grain of evidence to indicate that Dorsey White intended to sell that little scrap of marijuana. The presumption was ignored in this case.

It is interesting to note that there were no recorded conversations between the appellant and the purchasers of this marijuana. If the police possess modern equipment, they are capable of making a record of a controlled buy at any time. It seems to me that, when they are trying to obtain evidence about a 68 year old person who has never before been convicted of a crime, they should take some care to record at least some of the conversation.

An examination of the facts, as related by the officers and the appellant, clearly indicates to me that the appellant was tricked into these sales. Even if that were not so, he did not get a fair trial because of the prosecutor’s and state’s witnesses’ snide remarks and innuendoes that this old man was sleeping with this young black woman.

This case is among the most unjust I have reviewed during my entire tenure on this court. I believe the decision is wrong. Either the case should be reversed and dismissed because of the entrapment, or the penalty should be reduced to the minimum.


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

text:
    Stacy Maurice BALLEW v. STATE of Arkansas
    CR 88-140
    766 S.W.2d 14
    Supreme Court of Arkansas
    Opinion delivered March 6, 1989

      Slagle & Rhodes, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was charged with capital murder, aggravated robbery, and theft of property. He was convicted by a jury of first degree murder, aggravated robbery, and theft of property. The sentences were 15 years, 25 years, and 10 years, respectively, with the terms to run consecutively. For reversal the appellant argues that his sentencing for both first degree murder and aggravated robbery violates the double jeopardy clause of the United States Constitution and Ark. Code Ann. § 5-1-110 (1987). We agree with the contention that the conviction and sentence for aggravated robbery should be set aside.

The facts in this case are not in dispute, and the sufficiency of the evidence is not challenged. Therefore, we will not set out the facts in detail but state only that there was sufficient evidence to support verdicts of first degree murder, aggravated robbery, and theft of property.

The sole issue before this court is whether the sentence for aggravated robbery should be set aside. In order to determine the answer to this question, it is necessary only that we consider the provisions of Ark. Code Ann. § 5-1-110(a)(1) and the prior decisions of this court. According to the statute under consideration:

(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(1) One offense is included in the other, as defined in subsection (b) of this section ....
(b) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged ....

In the present case, the appellant was charged with capital felony murder in furtherance of the underlying crime of aggravated robbery. He also was charged with theft of property. The conviction was for first degree murder, sometimes called felony murder, which is committed by the killing of another person in the commission of any felony. The court instructed the jury on both the capital felony murder and the lesser included offense of murder in the first degree. There is no argument in this appeal that the instructions were not properly given. As the charges went to the jury, aggravated robbery was the supporting felony for the capital murder charge. Even though the appellant was convicted only of first degree murder, this conviction required proof of an underlying felony. Here, the underlying felony was aggravated robbery, as it was in the original charge of capital felony murder.

In a long line of cases going back to Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981), we have held that when a criminal offense by definition cannot be committed without the commission of an underlying offense, a conviction cannot be had for both offenses. See Ark. Stat. Ann. § 41-105(l)(a) (Repl. 1977),now Ark. Code Ann. § 5-1-110(a)(1) (1987)', and Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983). In other cases strikingly similar to the present one, where the accused was convicted of both capital murder and aggravated robbery, we have vacated the sentence imposed by the trial court for the lesser included offense of aggravated robbery. Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981). See also Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); and Brewer v. State, 277 Ark. 40, 639 S.W.2d 54 (1982).

In a more recent case, McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988), we noted that aggravated robbery was one of the seven felonies which may support a charge of capital felony murder. It was argued that only robbery was one of the seven named felonies. In McClendon, we held that either aggravated robbery or robbery would support a charge of capital murder. The opinion stated that armed robbery “was the underlying felony relied upon by the state to establish the crime of capital murder. The robbery was an essential element of the crime of capital murder. Therefore the appellant could not have been sentenced for aggravated robbery in this case.” See also Carmichael v. State, 296 Ark. 479, 757 S.W.2d 944 (1988).

The convictions and sentences for first degree murder and theft of property are affirmed. The sentence for aggravated robbery is vacated. The case is remanded to the trial court with instructions to proceed in a manner consistent with this opinion.

Affirmed as modified.

Hays, J., dissents.

Glaze, J., would affirm.

Steele Hays, Justice,

dissenting. I respectfully dissent to the majority opinion for two reasons: first, I can find no objection before the trial court to appellant’s conviction of aggravated robbery and theft of property as included offenses of first degree murder. We have held repeatedly that if such arguments are to be raised on direct appeal, they must first be presented to the trial court. Stephens v. State, 293 Ark. 366, 738 S.W.2d 91 (1987); Wilson v. State, 272 Ark. 361, 614 S.W.2d 663 (1981); Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981); Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981). While we make exception in death cases, that rule has no application here. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982).

Second, the appellant does not contend that he cannot be convicted for first degree murder and either aggravated robbery or theft of property. The argument is that he cannot be convicted of both, because one of the two felonies is an element of first degree murder and, hence, an essential element of that offense. The problem is that we cannot tell which of the two felonies the jury treated as included in first degree murder. However, it was the appellant’s responsibility to preserve that point in the record so that reversible, prejudicial error could be demonstrated on appeal. Snell v. State, 290 Ark. 503, 512, 721 S.W.2d 628 (1986).

Under our decisions, I believe the appellant’s recourse, if any, is by post-conviction relief rather than by direct appeal.