text:
    Hilliard L. NELSON v. STATE of Arkansas
    CR 91-70
    816 S.W.2d 159
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      Timothy “BlindHog” Bunch, Public Defender, by: Thomas

      E. Brown, Deputy Public Defender, for appellant.

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

Appellant, along with Charles Colbert and Ricky Dillard, was charged with the capital felony murder of Cheryl Franklin. Dillard agreed to be a state’s witness, and appellant’s case was severed from his co-defendants’. Appellant was convicted of the lesser included offense of first degree murder and sentenced to life imprisonment without parole.

On appeal, appellant argues that the trial court should have found Dillard an accomplice as a matter of law and erroneously failed to instruct the jury accordingly under AMCI 402. He also argued that the trial court erred in denying his objections to certain statements made by the prosecutor during closing argument.

First, we agree with the trial court that Dillard was not an accomplice as a matter of law and that the court was correct in instructing the jury under AMCI 403 because Dillard’s accomplice status was disputed. A brief reference to the pertinent facts is necessary. The state’s proof showed that on the evening of January 20, 1990, the appellant, Colbert and Dillard were frequenting various drinking establishments. After a brief conversation in the parking lot of one of the clubs, Dillard gave Ms. Franklin some money in exchange for sex. Apparently, she wanted money so she could buy a “hit of crack.” When the men left the establishment, Franklin and another woman got in the car. They took the other woman home, and then picked up another individual named Rita Lane. Lane, however, was subsequently let out when appellant and Lane got into an argument. The men and Franklin then drove to a secluded area where they could smoke some crack.

Dillard testified that he departed the car and laid upon its front hood. He said that appellant got in the back seat and had oral sex with Franklin. Dillard stated that, during this period when appellant was in the car’s back seat with Franklin, Dillard thought he heard appellant say that if Franklin would not have sex, they would leave her stranded. Dillard heard appellant and Franklin argue, and minutes later, Dillard heard three thumps on the back end of the car. Dillard looked through the back window of the car and saw Colbert with something in his hand making a wiping motion on the car’s trunk. When Dillard walked to the rear of the car, he viewed appellant standing over Franklin with a piece of concrete in his hand, coming down towards her head. Appellant and Colbert drug Franklin’s body into some bushes, and told Dillard if he said anything, the same thing would happen to him. Franklin’s body was found the next day and all three men were arrested.

Under settled law, appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). An accomplice of another person in the commission of a crime is statutorily defined as a person, who with the purpose of promoting or facilitating the crime, solicits, advises, encourages, or coerces the other person to commit the crime or aids, agrees to aid, or attempts to aid the other person in planning or committing it. Ark. Code Ann. § 5-2-403 (1987). Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make a person an accomplice. Scherrer, 294 Ark. 227, 742 S.W.2d 877.

Appellant argues a number of factors he believes show Dillard was an accomplice as a matter of law. For example, he asserts the state originally had filed the same murder charge against Dillard as it did against appellant and Colbert, Dillard was at least guilty of the crime of hindering apprehension and the prosecutor had granted Dillard “extreme leniency.” Clearly, none of these facts in any way make Dillard an accomplice to Franklin’s murder. And while appellant argues the state obtained from Dillard’s wife a shirt, which may or may not have had blood on it, implicating Dillard in the crime, there was other testimony indicating the shirt was Colbert’s. Such evidence surely does not conclusively establish Dillard as an accomplice to murder. See also Pilcher, 303 Ark. 335, 796 S.W.2d 845 (where this court concluded that the fact the witness helped load a victim’s body into a truck did not establish the witness as an accomplice).

Finally, appellant argues that Colbert’s confession, which apparently related Dillard’s involvement in the crime, clearly revealed appellant as an accomplice. The short answer to this claim is that Colbert’s confession was never introduced into evidence. Thus, the trial court or jury never had Colbert’s confession before it when confronted with the accomplice issue.

In sum, contrary to appellant’s argument, the evidence is disputed as to Dillard’s accomplice status. Dillard’s presence at the crime scene and knowledge of the crime was shown, but, as stated above, such is insufficient to make him an accomplice. Thus, the trial court did not err in refusing appellant’s request for the AMCI 402 instruction.

Before leaving the accomplice issue, we consider appellant’s suggestion that the trial court erred in denying his directed verdict motion that insufficient evidence was shown to corroborate Dillard’s testimony. The state presented evidence that a Henry Bennett, Thelma Williams (Canaday) and Rita Lane saw Franklin with appellant, Dillard and Colbert on the night of Franklin’s murder, and a Wardell Henderson, a bicycler, found Franklin’s body in the area where Dillard said the four of them had gone that night. An investigator found several items of evidence at that same location, which included Colbert’s black lighter and a concrete block with blood on it. The medical examiner testified that Franklin’s death was caused by a blunt object to her head, such as a concrete block. And finally, a state police officer located Colbert’s car, which had a dented trunk lid with what appeared to be blood on it. The foregoing evidence clearly sufficiently corroborates Dillard’s testimony and tends to connect appellant with Franklin’s murder.

Appellant’s second point concerns the prosecutor’s closing argument. Basically, he says the prosecutor argued beyond the scope of the evidence and prejudiced the jury by doing so. During his closing, the prosecutor said the following:

Even [defense counsel] challenged [Dillard] and said, “Why aren’t you telling us everything you told the police?” And you know what it had to be? It had to be more things that convicted [appellant]. We didn’t hear them, though. If they had been in favor of [appellant], we would have heard them. They would have had the policeman up here telling you all these things that. . . appellant didn’t do it, and someone else did. Or [defense counsel], as he insinuated, “Why don’t you tell them what you told me?” Well, if it had been good for the [appellant], don’t you know [defense counsel] would have been up there telling you about it?

At this point, appellant’s counsel objected, saying the prosecutor knew defense counsel could not testify and still try a case. He called the prosecutor’s remarks improper and said such remarks were not evidence.

In reviewing the record, particularly defense counsel’s cross-examination of Dillard, counsel attacked Dillard’s various statements as being inconsistent. In doing so, counsel elicited from Dillard that, in a prior statement, Dillard said that he, Colbert and Franklin did not discuss sex the night of the crime and then posed a question suggesting Dillard had told defense counsel and the authorities a different story later. While the prosecutor objected and defense counsel rephrased his question, counsel, continuing his impeachment of Dillard’s differing statements, asked later, “What I want to know now is (sic) what you told the authorities that they wrote down correct or is what you told me correct or what you are telling the jury correct?” In closing argument, defense counsel further alluded to the fact that the state failed to produce certain testimony or evidence at trial.

In reviewing the above testimony and appellant’s closing argument, we conclude the appellant opened the door to a response by the state. Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983); Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982). Accordingly, we hold the trial court did not abuse its discretion in overruling the appellant’s objection to the prosecutor’s remarks.

We have examined the record pursuant to Ark. Sup. Ct. R. 11(f) and find no points preserved for appellate review which constitute prejudicial error. For the reasons stated above, we affirm.


source: Caselaw Access Project

author: Donald Corbin, Justice.

license: Public Domain

text:
    Andrew ELLIS v. STATE of Arkansas
    CR 91-90
    816 S.W.2d 164
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      G. Randolph Satterfield, for appellant.

      Winston Bryant, Att’y Gen., by: Jeff Vining, Asst. Att’y Gen., for appellee.
   Donald Corbin, Justice.

Appellant, Andrew Ellis, was convicted by a Jefferson County Circuit Court jury of three counts of delivery of cocaine and one count of misdemeanor possession of marijuana. He received a cumulative sentence of thirty-five years in the Arkansas Department of Correction. On appeal he challenges evidence used against him at trial because the officers were not properly certified law enforcement officers. He also challenges the trial court’s refusal to instruct the jury on accomplice liability arising out of an undercover police officer’s purchase of cocaine from appellant. We affirm.

On the night of February 11,1989, Officer Danna Powell of the Pine Bluff Police Department stopped appellant for a misdemeanor traffic offense. After noticing a bulge in appellant’s pocket, Officer Joseph Dorman conducted a pat-down search of appellant. During the pat-down search, appellant fled and Officer Dorman observed appellant tossing a white pill bottle into a small garden. Following his arrest by Officer Dorman and Sergeant Larry McGee, the bottle was recovered and determined to have contained cocaine.

While appellant was incarcerated, the state filed two informations against him, the first concerning the above-referenced incident and charging him with possession of cocaine, and the second charging him with three separate counts of delivery of cocaine. The second set of charges was the result of a pending investigation by State Police Investigator Bobby Nicks. Appellant was later charged with misdemeanor possession of marijuana resulting from an unrelated traffic stop for DWI.

The state and appellant made an agreement whereby the state woúld not charge appellant as an habitual criminal if appellant would waive his right to severance of the charges. Appellant was tried by a jury and found not guilty of the possession of cocaine charge arising out of the February 11,1989 traffic violation. However, he was convicted of the three counts of delivery of cocaine and the misdemeanor possession of marijuana.

As his first assignment of error, appellant alleges the trial court erred in failing to grant his motion to dismiss the criminal charges and suppress evidence. Appellant’s motion to dismiss was premised on the fact that, at the time of his arrest for the February 11, 1989 traffic offense, none of the police officers who arrested him met the minimum employment standards established by the Commission on Law Enforcement Standards and Training. Although appellant was found not guilty on the possession of cocaine charge resulting from the February 11, 1989 incident, he argues that having to defend this charge increased his evidentiary burden and that any evidence resulting from this arrest should have been suppressed.

We find this argument to be meritless. On appeal, appellant must demonstrate prejudice, not just allege it. Johnson v. State, 303 Ark. 313, 796 S.W.2d 342 (1990). Appellant was found not guilty on the single charge of possession of cocaine. He has not demonstrated any prejudice resulting from the not guilty verdict.

Appellant’s contention that the retroactive application of 1989 Ark. Acts 44 is prohibited by the ex post facto clauses of our federal and state constitutions has already been addressed. We call attention to a case dealing with this precise issue, Harbour v. State, 305 Ark. 316, 807 S.W.2d 663 (1991). This recent ruling stands for the proposition that in cases tried after November 8, 1989, the effective date of 1989 Ark. Acts 44, the amended version of Ark. Code Ann. § 12-9-108(a) (Supp. 1989) applies such that actions taken by non-certified officers are not held invalid merely because of a failure to meet the standards of the Arkansas Law Enforcement Commission. See Harbour, 305 Ark. at 317, 807 S.W.2d at 663. Although appellant was arrested on February 11, 1989, and his motion to dismiss was denied on August 17, 1989, the trial was held on October 16, 1990, and judgment was entered on October 22, 1990. The case was thus pending when 1989 Ark. Acts 44 was enacted and the trial court’s application of the Act was not an application of an ex post facto law. Barnes v. State, 305 Ark. 428, 810 S.W.2d 909 (1991); Harbour, supra; Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991); Ridenhour v. State, 305 Ark. 90, 805 S.W.2d 639 (1991).

As for the suppression component of appellant’s argument, we call attention to Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991), State v. Henry, 304 Ark. 339, 802 S.W.2d 448 (1991), and Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990), where we held the exclusionary rule inapplicable to cases involving uncertified law enforcement officers because an officer’s failure to meet minimum employment qualifications is not the police misconduct the Fourth Amendment was intended to prohibit.

As his second assignment of error, appellant contends the trial court erred in refusing to instruct the jury on accomplice liability. Appellant proffered a complicity instruction based primarily on the theory that Investigator Nicks was appellant’s accomplice because he purchased cocaine from appellant on three different occasions. He contends these purchases made Investigator Nicks an accomplice of appellant, and thus required corroboration of appellant’s guilt by other evidence independent of Investigator Nicks’ testimony.

We have consistently held that a buyer of illicit drugs is not an accomplice of the seller. Williams v. State, 290 Ark. 449, 720 S.W.2d 305 (1986); Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985); Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971). Accordingly, we find no error in the trial court’s refusal to instruct the jury that Officer Nicks was appellant’s accomplice.

Affirmed.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    Nathaniel MITCHELL v. STATE of Arkansas
    CR 91-44
    816 S.W.2d 566
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      Green and Henry, by: J.W. Green, Jr., and Dennis R. Molock for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

A Jefferson County jury tried and convicted appellant, Nathaniel Mitchell, of two counts of first-degree murder and one count of attempted capital felony murder. The jury sentenced appellant to forty years imprisonment for each of the murder convictions, and thirty years imprisonment for the attempted capital felony murder count. Appellant asserts four grounds for reversal of his conviction. We affirm on each of the four grounds.

I.

CUSTODIAL STATEMENT

Appellant’s primary allegation of error is that the trial court erred in denying his pre-trial motion to suppress his custodial confession. He presents two theories in support of his suppression argument; First, he argues that the failure of the Jefferson County Sheriffs Department to inform appellant that he had legal representation or to follow counsel’s instructions regarding appellant’s interrogation invalidated appellant’s confession. Second, appellant argues that the trial court erred in disregarding his testimony at the suppression hearing that the police denied his request to use a telephone to arrange for legal representation. We disagree with both of appellant’s arguments.

On August 25, 1989, police discovered the bodies of two gunshot victims, Charles Goodloe and Henry Harris, at the Altheimer Recreation Club in Jefferson County. Later that morning, police received information that appellant had killed Goodloe and Harris, and wounded another victim, E.L. Surratt, during a shooting incident the previous evening. Based on this information, the police arrested appellant at his residence in Stuttgart shortly after 4:00 a.m.

The police informed appellant of his Miranda rights at the time of his arrest. At approximately 7:00 a.m., the police again informed appellant of his Miranda rights. Following the second recitation of the Miranda rights, the police conducted a four hour interrogation session with appellant. At the’conclusion of the interrogation, appellant gave police a signed confession admitting his involvement in the shootings.

While appellant was in custody, his family had retained counsel for appellant. During appellant’s interrogation, counsel repeatedly telephoned the sheriffs department attempting to gain information about appellant’s case. The police never told appellant of counsel’s efforts. When counsel failed to contact appellant, counsel instructed the police to cease questioning of appellant. The police ignored counsel’s instructions, and appellant did not speak to counsel until after appellant confessed to the crime. Appellant argues that the conduct of the police during the interrogation process violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966), by denying him access to an attorney. We disagree.

A suspect’s waiver of his Fifth Amendment rights is valid only if it is made “voluntarily, knowingly and intelligently.” Miranda, supra, 384 U.S. at 444. The inquiry into the validity of a waiver has two distinct dimensions. Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989) citing Colorado v. Spring, 479 U.S. 564 (1987) and Moran v. Burbine, 475 U.S. 412, 421 (1986). First, the waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran, 475 U.S. at 421; Burin, 298 Ark. at 613, 770 S.W.2d at 126. Second, “the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran, 475 U.S. at 421; Burin, 298 Ark. at 613, 770 S.W.2d at 126.

Appellant does not explicitly challenge either prong of the waiver inquiry. Instead, he argues that the trial court should have suppressed his confession because the conduct of the police denied counsel access to appellant. We disagree based on the Supreme Court’s decision in Moran, supra.

In Moran, the Supreme Court held that the failure of the police to follow counsel’s instructions or to inform the suspect of counsel’s efforts to reach him does not affect the validity of an otherwise proper waiver. Events occurring without a suspect’s knowledge do not implicate the validity of a waiver because such events “can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Id. at 422.

We have followed Morans interpretation of the waiver requirements. See Burin, supra, In the instant case, appellant did not know of counsel’s efforts on his behalf. Consequently, we find that the police treatment of counsel is irrelevant to the validity of appellant’s waiver.

Appellant attempts to distinguish the instant case from Moran by alleging that the Jefferson County police conspired to deny him access to counsel. We also find this distinction irrelevant to the validity of appellant’s waiver. We agree with the Supreme Court’s assessment of police culpability in Moran:

[W]hether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent’s election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident.

Moran, supra, 475 U.S. at 423.

At the suppression hearing, the trial court found that appellant understood his rights and voluntarily waived them. Only if the “ ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Burin, 298 Ark. at 613-14, 770 S.W.2d at 126 quoting Moran, 475 U.S. at 421. We independently examine the totality of the circumstances to determine whether the trial court’s ruling was clearly erroneous. Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989); Burin, supra.

Appellant argues that the trial court should have suppressed his confession on the basis of his testimony at the suppression hearing. At the suppression hearing, appellant testified that the police denied his request to use a telephone to arrange for legal representation. He further testified that the police ignored his request to cease questioning. However, the testimonies of several police officers contradicted appellant’s assertions. They testified that appellant never asked them to cease the interrogation or indicated that he wished to consult an attorney. The police also testified that appellant indicated he understood his rights and waived them.

The credibility of witnesses who testify at a suppression hearing concerning the circumstances surrounding the defendant’s in-custodial statement is for the trial judge to determine. Branscomb, supra, 299 Ark. at 489,774 S.W.2d at 429. Based on our independent review of the totality of the circumstances we cannot say that the determination is clearly erroneous.

Accordingly, we affirm the trial court’s decision allowing the state to introduce appellant’s confession into evidence.

II.

AMENDED INFORMATION

For his second allegation of error, appellant argues that the trial court erred in allowing the state to amend its information three days prior to trial. On August 28, 1989, the state charged appellant with one count of premeditated and deliberated capital murder and one count of attempted capital murder. On August 17, 1990, three days prior to trial, the state amended the information to assert an additional count of capital murder. Appellant argues that the additional count violates the statutory prohibition of amendments changing the nature or degree of the crime charged. Ark. Code Ann. § 16-85-407 (1987). We disagree.

The legislature’s 1989 revision of the homicide statutes authorized the state’s assertion of the additional murder count. The premeditated and deliberated capital murder statute, Ark. Code Ann. § 5-10-101 (a) (4) (Supp. 1989), now provides:

(a) A person commits capital murder if:
With the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person[.]

Prior to 1989, each premeditated and deliberated capital murder count required two victims. Ark. Code Ann. § 5-10-101 (1987).

Appellant does not dispute the fact that the new statute was in effect on the date of the alleged murders. We have held that the state may amend an information to conform to the proof so long as the amendment does not change the nature or degree of the offense charged. Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982). The mere fact that an amendment authorizes a more severe penalty does not change the nature or degree of the offense. Wilson v. State, 286 Ark. 430, 692 S.W.2d 620 (1985). As the state points out, the only effect of the amendment was to split the original single count of capital murder into two counts of capital murder under the new statutory definition of that offense. We consider this amendment to be a matter of form that does not change the nature of the offense charged.

Furthermore, appellant failed to request a continuance when he was put on notice that the state planned to amend the information. We have previously held that we will not presume prejudice when an appellant fails to move for a continuance after he is put on notice that the state plans to amend an information. Harrisons v. State, 287 Ark. 102, 696 S.W.2d 501 (1985); Wilson, supra; Jones, supra. In this case, appellant knew of the state’s plan to amend three days prior to trial. Since he did not move for a continuance, we find no prejudice in the trial court’s allowance of the amendment.

III.

CHARACTER WITNESSES

Appellant’s third allegation of error asserts that the trial court erred in excluding the testimony of six character witnesses for the defense. The trial court granted the state’s motion to exclude the testimony because the defense failed to comply with the state’s discovery request for the names and addresses of the defense witnesses that would testify at trial. We affirm.

Ark. R. Crim. P. 18.3 provides the applicable discovery rule in criminal cases:

Subject to constitutional limitations, the prosecuting attorney shall, upon request, be informed as soon as practicable before trial of the nature of any defense which defense counsel intends to use at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof.

The state filed its discovery request on August 30, 1989. On October 10, 1989, the trial court entered an order directing appellant to respond to the state’s request within ten days prior to trial. Appellant failed to comply. He argues that the trial court erred in sanctioning him for his noncompliance because the substance of the witnesses’ testimony would be limited to statements concerning appellant’s truthfulness and veracity.

Rule 18.3 could not be clearer. We have held that the rule applies with equal force to testimony offered in support of a general denial defense and testimony offered to support an affirmative defense. Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986). Discovery in criminal cases, within constitutional limitations, must be a two way street. Id. at 558, 720 S.W.2d at 906. This interpretation promotes fairness by allowing both sides the opportunity to full pretrial preparation, preventing surprise at trial, and avoiding unnecessary delays during the trial. Id. In the instant case, the trial court found that appellant’s failure to comply with the discovery order prejudiced the state. Without the names and addresses of appellant’s witnesses, the state could not exercise its right to obtain information questioning the witnesses’ credibility. We find that the trial court’s exclusion of appellant’s character witnesses was a proper sanction for appellant’s blatant disregard of the discovery rule.

We reject appellant’s attempt to characterize his witnesses as rebuttal witnesses. He attempts this characterization in an effort to bring his witnesses within the narrow exception to Rule 18.3 that we recognized in Weaver, supra. We noted that genuine rebuttal witnesses need not be disclosed before trial because neither the defense nor the state necessarily knows in advance of the need for such rebuttal testimony. Id. In this case, appellant planned to use the witnesses in his case-in-chief. Since he knew in advance of the need for the witnesses’ testimony, the trial court did not err in refusing to give appellant the benefit of the rebuttal witness exception to the discovery rule.

IV.

JURY INSTRUCTIONS

For his final allegation of error, appellant argues that the trial court erred in instructing the jury on the capital murder charge. The trial judge gave the jury the following instruction on the capital murder charge:

In count one, that with a premeditated and deliberate purpose of causing the death of Charles Goodloe; . . . Nathaniel Mitchell caused the death of Henry Harris.

The judge gave an identical instruction on the elements of capital murder with respect to the killing of Henry Harris.

Appellant argues that in order to satisfy the elements of capital murder, the state must show that the defendant acted with “an intent to cause the death of A and in so acting, caused the death of B.” We disagree based on the common sense construction of the applicable statute, section 5-10-101 (a)(4). The statutory phrase “another person” means a person other than the defendant himself. We find no error in the trial court’s instruction on capital murder.

Appellant also asserts that the trial court erred in instructing the jury on the definition of attempted premeditated and deliberated capital murder. Specifically, appellant argues that there was no evidence to support an attempt conviction. Appellant’s argument is without merit. The victim of the attempted murder testified that appellant deliberately shot him through a car window. This testimony provided a basis in the evidence for the trial court’s instruction on attempted capital murder. Accordingly, we affirm.

Glaze and Brown, JJ., concur.

Robert L. Brown, Justice,

concurring. I concur with the majority opinion and find no violation of the appellant’s constitutional rights under these facts. This case, nevertheless, raises a concern about the access of counsel to an accused in custody.

Statements by an accused must, first, be knowingly and intelligently made and, second, be made voluntarily. The appellant signed a document in this case evidencing that he knew what he was doing in making the statement and was doing so voluntarily. No doubt, in many cases the accused will make a statement to the police because it is obvious the authorities have a strong case against him or he wants to rid himself of the burden of the crime or he desires to curry favor with investigating officers and, incidentally, to receive some consideration for his efforts at sentencing. Equally obvious is the fact that an accused who learns that an attorney has been retained and is trying to see him may well cease further disclosures to police detectives.

As the majority underscores, the emphasis must be placed on the accused and his voluntary and intelligent waiver. However, there is something vaguely chilling about an allegation that an accused was kept incommunicado from counsel for a period of time. Here, I hasten to add, the time was not extensive, since counsel did not make his first telephone call until 10:26 a.m., and the statement was signed minutes later at 10:51 a.m. Further, the facts are inconclusive about whether the department was purposefully delaying counsel contact.

Police officers are well within their rights in limiting access to the accused during certain times such as a sensitive point in interrogations and a line-up when counsel has been waived. Surely, law enforcement does not have to “drop everything” when newly retained counsel calls. At some point, however, counsel must be given access, even though a waiver of counsel has been signed by the accused. That precise time limit is difficult to determine precisely, and the facts of each case must govern accessibility. Any hint, though, that detectives are rushing to finalize a statement while keeping counsel at bay should be avoided. Here, the limit on attorney access was not egregious enough to warrant an exclusion of the statement from evidence. As the U.S. Supreme Court warns, at some point it could be. See Moran v. Burbine, 475 U.S. 412, 432 (1986).

Glaze, J., joins.


text:
    Jerry Glen SEYLLER and Alma Katherine Seyller v. PIERCE AND COMPANY, INC.
    90-327
    816 S.W.2d 577
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991
    [Rehearing denied October 28, 1991.]

      Friday, Eldredge & Clark, by: James C. Clark, Jr. and Toma P. Jones, for appellant.

      Green & Henry, for appellee.
   Donald L. Corbin, Justice.

Appellants, Jerry Glen Seyller and Alma Katherine Seyller, appeal a judgment of the Arkansas County Chancery Court imposing a materialman’s lien on their property in favor of appellee, Pierce and Company, Inc. We find no error in the trial court’s judgment and affirm.

The facts giving rise to the lien in question began when appellant Jerry Seyller consulted his long-time friend Tom Hollman regarding the construction of a metal building for appellants’ wholesale electric business, Seyller Electric, Inc. On June 26, 1989, appellant Jerry Seyller signed a contract for the commercial construction project he discussed with Mr. Hollman. Appellant Alma Seyller did not sign the contract. The contract was written on the letterhead of Ray & Ray Metal Buildings, Inc. (RRMB) and signed by Mr. Hollman as authorized agent of RRMB. RRMB is a corporation holding a valid contractor’s license. Although RRMB was appellants’ general contractor, it did not perform the actual construction for the Seyller Electric project; rather, another corporation, Steel Building Manufacturers, Inc. (SBM) performed the construction. SBM was not a licensed contractor.

Mickey Pierce, president of appellee Pierce and Company, contacted Mr. Hollman seeking to supply ready-mix concrete for the Seyller Electric project. In August and September of 1989, appellee executed two written agreements concerning the concrete for appellants’ building. These agreements were addressed to Mr. Hollman at Ray & Ray Construction Company, Inc. (RRCC) and signed by Mr. Hollman as agent of RRCC. Mr. Hollman was employed as a salesman by both RRMB and RRCC. RRCC was not a licensed contractor.

The testimony of Larry Holleman, an accountant and former Secretary/Treasurer of SBM and RRMB, revealed that RRMB was a shell corporation formed for the purpose of obtaining a valid contractor’s license. Mr. Holleman explained that RRCC, along with several other corporations, was merged into a separate corporation, SBM, in January 1985. SBM continued to do business as RRCC. When SBM was unable to obtain a contractor’s license, RRMB was formed and incorporated on June 9, 1986. RRMB obtained a contractor’s license and, as Mr. Holleman testified was the standard operating procedure of the companies, served only as a general contractor to enter contracts with property owners. SBM would then perform the actual construction and arrange any necessary subcontracting. When RRMB received payment for the construction, it would in turn make payment to SBM. Mr. Holleman testified that the foregoing standard procedure was followed on the Seyller Electric project.

Appellee had not received payment for the concrete it supplied to SBM d/b/a RRCC when construction on the Seyller Electric project was halted before completion. Appellee thus filed suit to establish a lien on appellants’ property pursuant to Ark. Code Ann. § 18-44-101 (1987). The trial court ruled in appellee’s favor establishing a lien on appellants’ property for $29,858.30, the amount of the concrete supplied to SBM d/b/a RRCC for appellants’ construction project. The judgment ordered a sale of appellants’ property with proceeds applied to the $29,858.30 owed appellee. Appellants appeal claiming appellee did not strictly comply with the requirements of our materialmen’s lien statute. Alternatively, appellants claim the lien is unenforceable against appellant Alma Seyller’s interest in the property. We find no merit to appellants’ claims.

As their first argument on appeal, appellants assert the trial court erred in finding the necessary contract required by our materialmen’s lien statute, section 18-44-101. The statute reads in pertinent part:

(a) Every mechanic, builder, artisan, workman, laborer, or other person who shall. . . furnish any material, . . .for any building,. . . upon land,. . . under or by virtue of any contract with the owner or proprietor thereof or his agent, trustee, contractor, or subcontractor, upon complying with the provisions of this subchapter, shall have, for his . . . materials,. . . furnished, a lien upon the building, . . . and upon the land belonging to the owner

Pursuant to this statute, the trial court found there was an enforceable contract between appellee and RRMB, appellants’ general contractor, sufficient to support a materialmans’ lien. Appellants claim-that-section 18-44-101 requires appellee, as a potential lien claimant, to have a contract with either themselves, as property owners, or with another party who has a contract with them. Appellants argue appellee did not meet this requirement because appellee’s contract was with SBM d/b/a RRCC; appellants did not have a contract with SBM d/b/a RRCC as their contract was with the separate entity, RRMB.

Appellants are correct in stating the statute requires appellee to have either a contract with them or with someone with whom they have contracted. Appellants are incorrect, however, in asserting that no such contract exists.

The requirement of the statute has been met and the trial court was correct in so holding, for the statute clearly provides that “a lien can be created if a contract is shown to exist between a materialman and a contractor representing the owner. The necessary contract can be by express agreement or implied from the circumstances or conduct of the parties.” Gillison Discount Bldg. Materials, Inc. v. Talbot, 253 Ark. 696, 698, 488 S.W.2d 317, 319 (1972).

The necessary contract between appellee and appellants’ contractor, RRMB is found through the principles of agency and an implied agreement. Larry Holleman’s testimony, as related at the beginning of this opinion, revealed that the common practice of RRMB was to assign all its contracting authority to SBM. SBM would then perform the construction contracts and arrange any necessary subcontracts. Mr. Holleman testified this was the standard procedure of the two companies and that it was followed in the Seyller Electric project. From these facts, we conclude SBM d/b/a RRCC was an agent of RRMB. See Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985). Thus, as section 18-44-101 requires, and in the language of Gillison, supra, a contract “exist [s] between a materialman [appellee] and a contractor representing the owner [SBM d/b/a RRCC].” Gillison, 253 Ark. at 698, 488 S.W.2d at 319.

Appellants claim the trial court, in effect, “pierced the corporate veil” to find the necessary contract existed, and that to do so was error in this particular case. We cannot agree with this contention. The trial court’s judgment is silent with respect to piercing any corporation’s veil and it is not necessary to do so to find a contract between appellee and RRMB. Appellee had a contract with SBM d/b/a RRCC, who was an agent of appellants’ contractor, RRMB.

As their second claim on appeal, appellants argue appellee did not comply with the notice provisions of the materialmen’s lien statute. Specifically, appellants claim they should have received pre-construction notice of any potential liens as required by Ark. Code Ann. § 18-44-115 (1987). It is undisputed that appellants did not receive the requisite notice. Appellee responds with the argument that appellants were not entitled to the preconstruction notice because the construction involved was “commercial construction” which is excepted from the notice requirement by section 18-44-115(f). Because we have recently held the commercial construction exception to the notice requirement unconstitutional on equal protection and due process grounds, Urrey Ceramic Tile Co. v. Mosley, 304 Ark. 711, 805 S.W.2d 54 (1991), we must make a threshold choice of law determination regarding which law applies to the current case. In other words, we must first decide whether to apply Urrey retroactively to this case which was pending before us when Urrey was decided.

We have stated that once a statute is declared unconstitutional, it is treated as if it had never been passed. Bob Hankins Distrib. Co. v. May, 305 Ark. 56, 805 S.W.2d 625 (1991); Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981). However, in this particular case, to treat the statute as if it had never been passed would require us to ignore the well-settled rule that even constitutional arguments are waived on appeal unless raised below. Smith v. City of Little Rock, 305 Ark. 505, 806 S.W.2d 371 (1991). Thus, before addressing the merits of appellants’ second argument, we must make a choice of law. In other words, we must decide if Urrey is applicable to the present case such that section 18-44-115(f) is considered never to have existed; or, if because appellants failed to preserve the constitutional argument for appellate review, is Urrey not applicable to the present case such that sections 18-44-115(f) is considered to exist in this case.

In reaching our determination of the applicability of Urrey we consider the recent decision, James B. Beam Distilling Co. v. Georgia, _U.S_, 111 S. Ct. 2439 (1991), where a plurality of the United States Supreme Court stated its position on the retroactive application of a decision to claims arising on facts antedating the decision. That position, as stated by Justice Souter who announced the judgment of the Court, is that once the Court has applied a rule of law to the litigants in one case, it must apply the same rule of law to all other litigants not barred by procedural requirements or res judicata. Thus, having no procedural bars, James B. Beam Distilling Company, as petitioner, received the benefit of a prior decision of the Court, Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984), although it did not begin to litigate its case until after the Bacchus decision was rendered.

It is important to note that petitioner James B. Beam Distilling Company was not barred by res judicata, a statute of limitations, or other procedural requirements from litigating its case. In that respect, the factual situation in James Beam differs from the factual situation in the current appeal. Here, appellants are barred by the procedural requirement of preserving an issue in the trial court for our review. It is true that in their answer appellants asserted the materialmen’s lien statute violated the Fourteenth Amendment of the United States Constitution and Ark. Const, art. 2, § 3; however, something more than a mere assertion of an argument in the pleadings is required to preserve an issue for appellate review. In Bond v. Dudley & Moore, 244 Ark. 568, 426 S.W.2d 780 (1968), we held that a party’s conduct at trial can have the effect of abandoning an issue raised in the pleadings so that it cannot be relied upon in this court. We have also held that we will not address a constitutional argument that was not called to the trial court’s attention for a ruling on the constitutionality during trial or at some point prior to the entry of final judgment. May v. Barg, 276 Ark. 199, 633 S.W.2d 376 (1982); Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980). In the current case, although appellants raised the constitutional question in the pleadings, and although they raised a question of insufficient notice in their proposed findings of fact and conclusions of law, they did not request or receive a ruling on the constitutional issue from the trial court, nor did they argue the issue before to the trial court. Thus, in accordance with May, supra, Wilson, supra, and Bond, supra, we find appellants did not properly raise the constitutional argument to the trial court and the argument is not subject to appellate review. Accordingly, we hold the Urrey decision is not applicable to this case.

Now we address the merits of appellants’ second claim. The thrust of appellants’ argument is that appellee, who is a licensed contractor, was not entitled to receive the benefit of the commercial construction exception because the actual construction was not “performed by” a licensed contractor. The commercial construction exception, section 18-44-115(f), reads as follows:

The provisions of this section shall not be applicable to commercial and industrial construction performed by contractors licensed under § 17-22-101 et seq.

As was previously stated, it was SBM d/b/a RRCC that performed the construction of appellants’ building. At all times relevant to this appeal, SBM was not a licensed contractor. Thus, argue appellants, since a licensed contractor did not perform the construction, this exception should not apply and appellee’s lien should be held unenforceable for failure to give the requisite notice.

We have already determined that SBM d/b/a RRCC was RRMB’s agent. RRMB, a licensed contractor, was appellants’ general contractor which performed the construction by arranging the work and any necessary subcontracts. As the construction was performed by RRMB, a licensed contractor, the commercial construction exception applies. Appellee’s lien is therefore enforceable and does not fail for lack of notice to appellants.

Appellants’ third argument on appeal is that appellee’s lien should not attach to appellant Alma Seyller’s interest in the property because she did not sign the contract with RRMB. Appellants own the property in question as tenants by the entirety. It is true that appellant Alma Seyller did not sign the contract, however, her actions during the construction indicate she was indeed a party to the contract, at least by implication. Steed v. Busby, 268 Ark. 1, 593 S.W.2d 34 (1980). She had knowledge of the contract and approved it by writing and signing three personal checks, which were drawn on appellants’ joint account made payable to RRMB, for the progress payments. We reiterate the previously cited holding of Gillison Discount Bldg. Materials v. Talbot, 253 Ark. 696, 488 S.W.2d 317 (1972), that the contract giving rise to a materialman’s lien can be either express or implied.

Affirmed.

Holt, C.J., and Brown, J., dissent.

Robert L. Brown, Justice,

dissenting. I would reverse.

By its decision today the majority disregards the law of corporations and the concept of distinct legal entities. The salient facts are undisputed:

1. The owner contracted with a corporation, Ray & Ray Metal Buildings, Inc. to do the work. The contract was signed on behalf of Ray & Ray Metal buildings by Tom Hollman as authorized agent. This corporation was duly licensed as a contractor in Arkansas.

2. A separate corporation, Steel Building Manufacturers, Inc., contracted with the supplier, Pierce and Company, for the materials in dispute. Tom Hollman signed on behalf of SBM as agent. SBM actually did the contracting work for the owner — not Ray & Ray Metal Buildings. SBM was not a licensed general contractor in Arkansas.

3. The owner was not notified by SBM that he would be liable for materialman’s liens as required by Ark. .Code Ann. § 18-44-115(1987). That notice would have identified a different corporation, SBM, as the actual contractor. As an unlicensed contractor, SBM was required to give the notice.

4. The owner paid Ray & Ray Metal Buildings one time for the materials. Based on the chancellor’s decision, he will have to pay the supplier again.

In the face of these facts, the chancellor found:

5. Plaintiff, as subcontractor, contracted with Ray & Ray Metal Buildings, Inc. to deliver materials in the form of concrete for the construction of the building on the Seyller property.

In making this finding, the chancellor erred. A separate corporation, SBM, contracted with the subcontractor which was Pierce and Company — not Ray & Ray Metal Buildings. The majority engages in contorted reasoning when it holds that a common agent for the two corporations somehow causes a contract made by one corporation to bind the other. That simply is not the law, absent some intent and action by the second corporation to be so bound.

We take a radical step today when we say a common agent by one action binds two corporations, without any corporate suggestion that this was intended and when the owner was not so advised. The clear purpose of the notice statute is to let an owner know of liability for materials when unlicensed commercial contractors are doing the work. Also, an owner might well refuse to deal with a new contractor revealed in the notice which is different from the contractor retained to do the job. The statutory notice requirement should have been followed in this case, and it was not. I would relieve the owner of further liability.

Holt, C.J., joins.


author: Donald L. Corbin, Justice.

text:
    William Paul SMITH v. STATE of Arkansas
    CR 91-71
    815 S.W.2d 922
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      William R. Simpson, Jr. Public Defender, Thomas B. Devine III, Deputy Public Defender, by: Andy O. Shaw, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, William Paul Smith, urges reversal of a Pulaski County jury verdict convicting him of capital murder under Ark. Code Ann. § 5-10-101 (a)(4) (Supp. 1989). The jury sentenced appellant to serve life without possibility of parole in the Arkansas Department of Correction. We affirm.

Appellant presents three arguments for reversal of his conviction. His third argument challenges the sufficiency of the evidence. We will address that argument first in accordance with our custom of addressing sufficiency of the evidence arguments prior to our consideration of other alleged trial court errors. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

Appellant argues that the trial court erred in denying his motion for a directed verdict because the state did not present sufficient evidence of the premeditation and deliberation elements of capital murder. We must affirm if we find substantial evidence to support appellant’s conviction. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). In determining whether there is substantial evidence, we consider only the evidence that is favorable to the state and supports appellant’s conviction. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991).

The state’s evidence showed that appellant drove to the Eastgate housing project in North Little Rock on the night of October 14, 1989. Two eyewitnesses testified that appellant parked his car, got out, and approached the victim, Michael Cooksey, from the side. The witnesses testified that Cooksey did not see appellant until appellant said, “Mike, I told you.” As appellant spoke, he raised a sawed-off shotgun and fired a single fatal shot into the left side of Cooksey’s face. Expert medical testimony established that the shot was fired approximately six feet from the victim. After shooting Cooksey, appellant jumped in his car and drove away.

Section 5-10-101 (a)(4) defines premeditated and deliberated capital murder:

(a) A person commits capital murder if:
(4) With the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person[.]

In the instant case, we believe the state produced substantial evidence that appellant killed Cooksey with the requisite premeditated and deliberated purpose. We have recognized that premeditation and deliberation are criminal elements that are hard to prove with concrete, demonstrative evidence. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). Rather, the jury may infer a defendant’s intent from the circumstances of the case. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977). Relevant circumstances include “the character of the weapon used and the manner in which it was used, the nature of the wounds inflicted, the conduct of the accused and the like.” Id. at 372, 556 S.W.2d at 888.

In the instant case, the state’s evidence included eyewit: ness testimony and medical expert testimony. In summary, this evidence established that appellant armed himself with a sawed-off shotgun, drove to the housing projects, walked to within six feet of the victim at an angle from which the victim couldn’t see, spoke the victim’s name, and shot the victim in the side of the head. We believe these circumstances provide more than substantial evidence for the jury to infer appellant’s premeditation and deliberation. Accordingly, we affirm the trial court’s denial of appellant’s motion for a directed verdict.

Appellant’s second allegation of error is that the trial court abused its discretion in failing to declare a mistrial when a juror informed the court that he may have known the victim, Michael Cooksey. The juror, Mr. James Treat, came forward after the jury had been sworn and the other veniremen had been excused to tell the court that a man resembling Mr. Cooksey had inquired periodically about a job at Mr. Treat’s place of employment. (The record is unclear as to how Mr. Treat knew what the victim looked like.) Mr. Treat informed the court that he did not remember the man’s name, and that he could not be sure that the man was Cooksey. The court then questioned Mr. Treat about his ability to serve as an impartial juror:

THE COURT: Would that relationship with the deceased, if in fact it is the same person, have any effect on your sitting as a juror?
JURY MEMBER: No, it wouldn’t affect me, Judge. I just wanted to report it.
THE COURT: I appreciate that, but do you think you couldn’t serve as a fair and impartial juror, even though this is the one that approached you at your job?
JURY MEMBER: No.

The court denied appellant’s motion for a mistrial.

We addressed an analogous situation in Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986). In that case, a juror came forward after the trial began to inform the court that he remembered meeting the prosecuting rape victim several years earlier at her place of employment. We found no abuse of discretion in the trial court’s refusal to declare a mistrial after the juror stated that his previous acquaintance with the rape victim would not affect his ability to be a fair and impartial juror. We recognized that situations involving an innocent failure to recognize the victim initially are clearly distinguishable from those cases where a juror intentionally gave false information during voir dire. Id.

In the instant case, we find no evidence that Mr. Treat intentionally withheld information during voir dire. Furthermore, assuming that the victim was the man Mr. Treat had seen at his place of employment, the information concerning the prior relationship was so tangential that we will not presume prejudice. Mr. Treat’s acquaintance with the man he had seen at the work was so limited that he could not even recall the man’s name. In cases such as this one, where a juror’s withheld information is neither material nor intentionally withheld, we will not find that the trial court abused its discretion in refusing to declare a mistrial. See Decker v. State, 717 S.W.2d 703 (Tex. Crim. App. 1986) (opinion on reh’g).

Finally, appellant asserts two challenges to the constitutionality of the capital murder statute. He first argues that the statute’s death penalty provision constitutes cruel and unusual punishment because of its arbitrary application. Since appellant did not receive the death penalty, he lacks standing to challenge the penalty’s alleged risk of arbitrary application. Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984); Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979).

Appellant also argues that we should declare the capital murder statute unconstitutionally vague because the elements of the offense overlap the first degree murder statute. We have previously rejected the vagueness argument regarding the overlap of capital felony murder and first degree murder. Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989); White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989). In those cases, we held that the overlapping was constitutionally valid because there was no impermissible uncertainty in the definition of each offense. White, supra. We apply the same rationale to section 5-10-101 (a)(4) and hold that the offense of premeditated and deliberated capital murder does not violate the constitutional prohibition of vagueness.

In accordance with Ark. Sup. Ct. R. 11(f), we have examined the record and have determined that there were no rulings adverse to appellant which constituted prejudicial error. Accordingly, we affirm the conviction.


author: Robert L. Brown, Justice.

text:
    Paul CRAVEY v. STATE of Arkansas
    CR 91-49
    815 S.W.2d 933
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      Burbank, Dodson & McDonald, for appellant.

      Winston Bryant, Att’y Gen., by: Catherine Templeton, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

On August 8, 1990, appellant Paul Cravey was found guilty of two counts of sexual intercourse or deviate sexual activity involving his niece, age 7, and his nephew, age 10, following waiver of a jury trial and trial before the court. He was sentenced to two terms of twenty years to run consecutively. Immediately following the sentencing, the trial court advised the appellant of his right to appeal on grounds of ineffectiveness of counsel under Ark. R. Crim. P. 36.4, as it was then in effect.

On August 13,1990, the appellant’s counsel moved for leave to withdraw because the appellant had decided to seek post-conviction relief due to ineffective counsel at trial. On August 28, 1990, the appellant filed a pro se motion for a new trial under Rule 36.4, containing fourteen allegations of counsel ineffectiveness. The allegations included failure of defense counsel to bring out inconsistencies in the victims’ testimonies, failure to call certain witnesses like the victims’ parents and the social workers to testify, failure to produce photographs of the crime scene, and failure to highlight certain salient points. (Among such salient points was the testimony of the state’s medical witness concerning the healing of vaginal scars as applied to the facts of this case.) The prosecuting attorney responded to each allegation and argued that the appellant failed to add supporting facts to illustrate how these alleged failures prejudiced him at trial.

On October 10,1990, the trial court signed an order granting the motion of appellant’s trial counsel to withdraw and stated that this was done “so that the [appellant] could file a motion for a new trial on the basis of ineffectiveness of counsel.” In another order the trial court appointed new counsel to represent the appellant. Also on October 10, 1990, the trial court denied the appellant’s motion for a new trial, finding “that the allegations in the motion are conclusory, that they fail to state the defendant was prejudiced, that the allegations are without factual support and clearly do not assert facts sufficient to raise an issue of ineffectiveness of counsel.” The trial court concluded that since the appellant’s motion “contains nothing but mere conclusions and unsubstantiated allegations,” it did not justify an evidentiary hearing.

The appellant now appeals the denial of his motion on two grounds: a) the trial court failed to appoint counsel to represent him prior to dismissal of his petition for post-conviction relief, and b) he was entitled to a hearing on his motion. We affirm the trial court on both points.

We begin by recognizing that our post-conviction procedures relating to ineffectiveness of counsel have been in flux over the past two years, and the appellant proceeded under a Rule 36.4 procedure which is no longer in effect. The operable part of Rule 36.4 establishing that former procedure read:

The judge must further advise the defendant that, if a motion for a new trial is filed asserting facts sufficient to raise an issue whether his or her counsel was ineffective, a hearing will be held, and the time for filing a notice [of] appeal will not expire until thirty (30) days after the disposition of the motion, as provided in Rule 36.22.

Under this procedure an appellant could pursue an ineffective-counsel motion before the trial court and would be entitled to a hearing if sufficient facts were raised. Otherwise, an appellant could appeal a denial of the motion to the appropriate appellate court within thirty days.

We agree with the trial court that the appellant’s allegations were not buttressed by sufficient facts to raise an issue of ineffectiveness of counsel. To prevail on a claim of ineffective counsel a movant must show that the errors were so serious that the defendant was deprived of a fair trial and of Sixth Amendment guarantees. See Mullins v. State, 303 Ark. 695, 799 S.W.2d 550 (1990) (per curiam); Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988) (per curiam). Yet in each instance in the case before us the allegations made were either vague due to lack of factual underpinnings or else lacked the seriousness necessary to raise a viable issue of counsel ineffectiveness. The allegations simply did not rise to that level of gravity required to overcome the strong presumption that trial counsel did a competent job. See Mullins v. State.

We next address the appellant’s assertion that he was entitled to the appointment of new counsel prior to the trial court’s dismissal of his motion. This equates to an argument that counsel was required to assist the appellant in perfecting his motion before the trial court under the Sixth Amendment. We have recognized repeatedly, however, that post-conviction proceedings under Rule 37 (the same rationale would apply to former Rule 36.4) are civil in nature and that there is no constitutional right to counsel to assist the defendant in preparing a motion for a new trial. See, e.g., Mullins v. State, supra; Fretwell v. State, 290 Ark. 221, 718 S.W.2d 109 (1986). We reaffirm those holdings today.

But where a hearing is required due to a trial court’s finding of sufficient facts alleged, counsel is necessary, and we have so held. See Preston v. State, 303 Ark. 106, 792 S.W.2d 599 (1990). In Preston, the post-conviction motion for ineffectiveness of counsel was made under Rule 36.4 established by our 1989 per curiam. We held that the trial court had granted trial counsel’s motion to withdraw but had not clearly ruled on the appellant’s motion for a new trial on grounds of ineffective counsel. We remanded the case for a ruling on that issue and added, “Even if we should construe the order to be an order denying a motion for new trial, as the appellant argues, we would still remand for a full finding of fact and written ruling.” 303 Ark. at 108; 792 S.W.2d at 600. We then directed that upon remand, new counsel should be appointed to represent the appellant, and the trial court should either a) find that the petition and records do not raise sufficient facts to support an ineffectiveness issue, or b) assuming that sufficient facts were alleged, conduct a hearing to determine if the appellant is entitled to relief.

In the case before us, the trial court has already found that the appellant’s motion is factually deficient and that a hearing is not justified. In Preston it had not done so. It would be futile, therefore, in light of what has already occurred for us to remand this case for further action before the trial court when that court has found that there is no basis for it.

In 1990 we remanded two Rule 36.4 matters and directed that a new attorney be appointed forthwith to prosecute an ineffective-counsel motion in the trial court. See Mobbs v. State, 303 Ark. 98, 792 S.W.2d 601, (1990); Cox v. State, 305 Ark. 488, 807 S.W.2d 665 (1991) (per curiam). Neither case guarantees the right to counsel to assist in preparing a post-conviction motion or the right to a formal hearing. Accordingly, they are not dispositive of the issues before us.

In this case the trial court found that the appellant’s allegations were conclusory and that he had not raised sufficient facts to support an issue of ineffective counsel. We note that the trial court was intimately familiar with the facts of this case. The matter had been tried before the court without a jury, and thus the court had acted as the finder of fact. With this knowledge as background, the court reviewed the appellant’s motion and the prosecutor’s response and reached its decision.

Under such circumstances and in light of the trial court’s findings, appointment of new counsel to prosecute the appellant’s motion further in that forum is not required. To hold otherwise would require new appointments and hearings in every post-conviction case, irrespective of a trial court’s previous findings. We decline to take such a dramatic step.

Affirmed.

       Ark. R. Crim. P. 36.4 was amended by Per Curiam order, effective July 1,1989, to provide for a motion for a new trial due to counsel ineffectiveness. In re Abolishment of Ark. R. Crim. P. 37 and the Revision of Ark. R. Crim. P. 36, 299 Ark. 573, 770 S.W.2d 148 (1989) (per curiam). That same date Ark. R. Crim. P. 37 was abolished. Id. By a second per curiam order effective January 1, 1991, Rule 36.4 was amended to delete the new trial procedure for ineffectiveness of counsel, and Rule 37 was reinstated. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, as Revised and the Amendment of Rule 26.1 and Rule 36.4 of the Arkansas Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458 (1990).


text:
    Vincent HOPES v. STATE of Arkansas
    CR 91-92
    816 S.W.2d 167
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      William R. Simpson, Jr., Public Defender, William M. Brown, Deputy Public Defender, by: Llewellyn J. Marczuk, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant Vincent Hopes was convicted of burglary and theft of property and sentenced as an habitual offender to thirty years for burglary and twenty years for theft of property, with the two sentences to run consecutively. He raises two points on appeal. First, he argues that the trial court erred in refusing to give an accomplice instruction relating to the principal witness against him. Secondly, he contends that the whereabouts of that same witness at the time of the offenses was proven by inadmissible hearsay testimony. Neither argument has merit, and we affirm the judgment of the trial court.

The facts are these. On the night of February 21, 1990, a Little Rock business named Yam’s was broken into, and a Little Rock patrolman responded to the alarm at about 10:10 p.m. The patrolman approached the store through a back alley, and, though it was raining, he spied a figure standing by the open trunk of his car. When that person saw the approaching police car, he fled on foot. The patrolman next saw a figure on the roof of the business. No one, however, was arrested at the scene. On entering the business, backup officers found a television set on the walkway.

The patrolman requested a license check on the car, and, upon searching the vehicle, he found a black bag that contained three flashlights, among other items. It developed that the car was owned by Edna Russ. Russ at the time was employed at Parkway Health Center and apparently was working the 3:00 p.m.-to-11:00 p.m. shift the night of the Yam’s break-in. She had loaned her car to the appellant earlier that day. At 10:30 that night she reported to the police that her car was stolen. She made a second report at 1:15 a.m. early the next morning.

Later that day Russ was taken to the police station as a suspect in connection with the Yam’s burglary and theft and was read her Miranda rights. She admitted at that time that the appellant had called her at about 10:15 or 10:30 and told her to tell the police that her car was missing. It was following that conversation that she called the police. She further admitted that she had lied to the police about her car and that she had known there was a “problem” when the appellant called the night before. She denied knowing anything about the Yam’s break-in. She admitted that two of the flashlights found in the car were hers.

The police released Russ, and later that day the appellant took her to get her car, which had been impounded. On the way, the appellant confessed to her that he had committed the burglary and theft with another man. That afternoon, at her urging, he turned himself into the police.

I. ACCOMPLICE

At the trial on September 24,1990, the appellant moved for a directed verdict on the basis that Russ was an accomplice, and there was no corroborating evidence to support her testimony. The trial court denied the motion. The appellant then requested two instructions: one, that Russ was an accomplice as a matter of law, and two, that the issue of whether Russ was an accomplice was for the jury to decide. The trial court refused to give either instruction. It is the failure to give the second instruction that the appellant contends was error.

The accomplice statute provides that a person is an accomplice if “with the purpose of promoting or facilitating an offense” that person encourages and aids in planning or committing the offense. Ark. Code Ann. § 5-2-403 (1987). The appellant argues that this issue should have been submitted to the jury for determination. He points to the fact that the prosecutor referred in his opening statement to the question of whether Russ was an accomplice; to the use of her car and flashlights in perpetrating the crimes; to the fact that a second unidentified person who may have been Russ was at the crime scene; and to her statement that she would do anything to keep from getting in trouble.

The defendant in a criminal case bears the burden of proving that a witness is an accomplice. Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982). A witness’s status as an accomplice is a mixed question of law and fact and must be submitted to the jury if there is any evidence to support a jury’s finding that the witness was an accomplice. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). Where the evidence does not support an accomplice instruction, it should be refused. Powell v. State, 231 Ark. 737, 332 S.W.2d 483 (1960). In the Earl case the witness alleged to be an accomplice had been jointly charged with the crime, and the charge against that witness was pending at the time of trial. There was also evidence tending to connect the witness with the commission of the crime. We held that, under those facts, it was error not to instruct the jury on the law of accomplice status and the need for corroborating evidence, should the jury find the witness was an accomplice.

Here, Russ testified that she was at work during the time of the break-in, and there was no testimony contradicting this. She also emphatically denied that she knew anything about the burglary and theft before the fact. Though she lied to the police initially, she later admitted this, and the trial court found her testimony to be credible. Under present law, a person who was formerly an accessory after the fact is now guilty of a separate crime — hindering apprehension and prosecution. Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979). The misinformation she conveyed to the police falls more readily into the category of hindering an investigation than evidence that she committed the crimes herself. Whether to give an accomplice instruction lies within the discretion of the trial court. We hold that there was no abuse of discretion under these facts.

II. HEARSAY

The appellant raises as his second point the admissibility of hearsay testimony into evidence to prove that Russ was at work at the time of the Yam’s break-in. The relevant colloquy took place during the prosecutor’s direct examination of the investigating detective:

Detective: And that she was reporting it at 10:30. I also told her that I had checked with her employer.
Defense: Objection, your honor. Hearsay.
The Court: Sustained.
Prosecutor: Okay.
Prosecutor: You told her that you were suspicious, you weren’t buying her story?
Detective: Correct.
Prosecutor: Okay. As part of your investigation, were you able to confirm whether or not she was at work?
Detective: Yes, she was.
Prosecutor: Okay. Were you able to confirm what time she got to work?
Defense: Your Honor, I’m going to object to that as hearsay again.
Prosecutor: I’m asking whether or not his investigation confirmed, not who said, how said or what.
The Court: How’s he going to get the information?
Prosecutor: It’s just part of his investigation.
The Court: Well, it’s probably objectionable but let’s go ahead. Everybody knows she was out there. Go ahead.
Prosecutor: Okay.
Prosecutor: Were you able to confirm that she was at work?
Detective: Yes.
Prosecutor: Okay. And what shift did she work?
Detective: The three to eleven shift.
Defense: Your Honor, I’m going to continue my objection to this.
The Court: If you won’t ask any questions about it, I’ll sustain it. But, if you’re going to get up and ask questions about it like you already have, well, then what difference does it make? Go on.

We do not agree with the Attorney General that the appellant failed to raise his objection at the first opportunity to do so. Rather, the. trial court erred in admitting this testimony into evidence. Nonetheless, the fact that Russ was at work during the time of the offenses was already before the jury through the testimony of Russ herself. There was nothing presented by the appellant to contest this. We have held that where the same evidence was introduced by another witness without objection, it was properly before the jury for consideration, and subsequent hearsay testimony by the police constituted harmless error. Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986). That is what occurred in the case before us. We hold that the detective’s testimony was harmless error.

Affirmed.