author: Steele Hays, Justice. Darrell Hickman, Justice,

text:
    Howard MARCUM v. STATE of Arkansas
    CR 88-196
    771 S.W.2d 250
    Supreme Court of Arkansas
    Opinion delivered May 30, 1989

      Bradley C. Crawford, for appellant.

      Steve Clark, Att’y Gen., by: J. Denhammcclendon, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Howard Marcum was convicted of rape and first degree sexual abuse for offenses involving his daughters A, aged 13, and B, aged 16. Appellant has appealed from the judgment sentencing him to life and ten years for the crimes. Three points of error are presented: The trial court erred in permitting a social worker to describe a profile of sexually abused children, in allowing a physician to testify that the victim had been sexually active and in limiting defense counsel’s cross-examination. Finding no error, we affirm the judgment entered on the convictions.

The Facts

The facts are summarized in the following narrative: Barbara and Howard Marcum married in 1972. Each had children by prior marriages and the couple had four children of their own. Howard’s work as a welder kept him away at times.

Around the end of 1985, A, who was then ten or eleven, intimated to her mother that her father was sexually abusing her. Barbara confronted Howard and threatened divorce. Howard denied the charges and privately urged the child to tell her mother they were untrue, which she did.

At another time Barbara Marcum discovered that A and her 18 year old half brother, Stacey Hackwith, had been in bed together. The three of them talked about it tearfully, with Barbara stressing that such things were very wrong. Prompted by that discussion A told her mother about having sexual intercourse with her father. Together they addressed Howard who angrily denied the accusations and blamed Barbara for believing them. Barbara told her daughter if the charges were true she would see that something was done about it but if not, much harm could result. Her father told A he could go to jail and the family would break up and again she told her mother she had lied.

Around January 1,1988, B, Howard Marcum’s daughter by an earlier relationship, came to live with the Marcums. She was then sixteen years old and had not seen her father since she was two. On the morning of February 3 Howard Marcum came into B's bedroom and began fondling her breasts and genitals. She resisted these advances and insisted that he leave. He did but later returned and forcibly fondled her again. When B continued to resist he went into a rage and told her to pack her things. When she put her bags in the truck he refused to let her leave and eventually she fled, frightened and crying, to a neighbor’s house where she called her stepmother, who made arrangements for her to stay with a friend. On the following day B reported the events to the police and to Ms. Debbie Palsrud of the Arkansas Department of Human Services. Ms. Palsrud contacted A at school to inquire about her relationship with her father. At that point the child denied any sexual contact with her father.

On February 8, 1988, Howard Marcum was arrested for sexual abuse of B. About a week later Barbara Marcum and her daughter talked again and Barbara pointedly asked for the truth. The child told her that her father had been having sexual intercourse with her regularly since she was seven or eight. Mrs. Marcum called the police and told them her daughter would be coming in to make a statement regarding the matter. This was done within a day or two and additional charges were filed against Howard Marcum. Howard Marcum testified in his own behalf and denied any improprieties with either daughter.

Called by the state, Dr. Thomas J. Simpson testified that he was a board certified gynecologist with twenty-eight years of practice, including extensive experience in rape and sexual abuse. He examined^ on February 22,1988, and took a history from her that her father had been having sex regularly with her over a period of seven years up to and including the previous month. She told him that except for her father she had had sexual relations eight times. He described the opening of the vagina as “very relaxed” and compatible with her having had sexual relations more or less on a long-term basis and not just of “very recent origin.” His findings were, he said, consistent with long-term repeated sexual relations and not just seven or eight times. Asked how he made that distinction, Dr. Simpson answered:

The opening to the birth canal we call the introitus and birth canal. In her case, it’s very relaxed. It admits two to three fingers and the hymenal ring showed evidence of having been penetrated at some point in time where there were tears, but they were old, healed and the amount of relaxation in the opening is certainly more compatible with someone who has had sexual relations on a longer term basis than just a few encounters . . . People who have had sexual relations and marital status over a period of years will be very similar to what we observed with this patient.

Such condition could not, he stated, be attributed to frequent masturbation.

Ms. Palsrud testified about her background, training and experience in the investigation of child abuse. When she was asked if there was a recognizable pattern of behavior by children subjected to sexual abuse, defense counsel objected to her testifying as an expert. The objection was overruled and Ms. Palsrud proceeded to discuss child sexual abuse in general. She said that after interviewing the older child at the police station, she contacted Barbara Marcum about other possible victims and was told she needed to talk to the younger daughter. When she spoke with A at school the child was shocked, confused and angry, and denied any inappropriate contact with her father. Ms. Palsrud said A wanted to know what would happen if she said anything and whether she would have to go to court. Counsel for appellant again objected, this time on the basis of hearsay, and renewed the argument that the witness did not have the qualifications of an expert. The trial judge stated that he had already recognized Ms. Palsrud as expert, but would sustain the objection.

I

The Trial Court Erred In Allowing Testimony Of The Social Worker, Stating That The History Given By The Victim Was Consistent With The Profile Of Sexual Abuse Victims.

The only objections before the trial court to the testimony of Ms. Palsrud was on the basis of hearsay and to her qualifications as an expert. The argument on appeal, however, is that it was error to permit Ms. Palsrud to testify that the history given by A was consistent with the profile of sexual abuse victims. Appellant cites the case of Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), where it was held to be error for a psychologist to testify that the history given by a victim was consistent with sexual abuse of a child, the reason being that no opinion of an expert was needed, inasmuch as the matter was not beyond the common knowledge and comprehension of the jury. We found, however, that because there was overwhelming evidence of guilt, the error was harmless.

We need not decide whether the facts of this case were such that an opinion of an expert might have been more useful to the jury, or whether, as in Russell, the error was harmless, because appellate review of evidentiary rulings of the trial court is limited to the specific legal issue raised by the objection of trial counsel and it is well settled that an appellant may not object in the trial court on one ground and argue another ground on appeal. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).

II

The Trial Court Erred In Allowing Testimony By A Medical Doctor Stating That The Victim Had Been Sexually Active For A Number Of Years.

Appellant maintains that it was error to permit Dr. Simpson to testify that A had been sexually active. If such evidence were offered by the defense, it is clear that its introduction would be subject to the rape shield statute requiring the defendant to make a timely motion in writing and to establish admissibility in accordance with the statute. Ark. Code Ann. § 16-42-101 (c) (10) (1987). Fields v. State, 281 Ark. 43, 661 S.W.2d 359 (1983); Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978). But the rape shield statute applies to evidence offered by the defense and thus a different problem arises when such evidence is offered by the state.

Appellant relies solely on Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). But the cases are palpably distinguishable. In Brewer, the appellant was convicted of rape and kidnapping. The proof was that the victim and her boyfriend stopped at a service station. When the boyfriend went to the restroom, the appellant, armed with a pistol, got in the car and ordered the victim to drive away. The appellant directed her to a secluded area where she was raped. The appellant then took the wheel but was soon apprehended when he stopped at a traffic light. The victim sustained lacerations to the hymenal ring which were bleeding when she was examined following the assault. There was blood on the appellant’s clothing and on the back seat of the car. Appellant’s version was that the victim had asked him for directions, and when she could not understand him he offered to drive her to the location. He claimed he had only been in the car some three blocks when stopped by the police. While questioning the victim on direct examination the prosecutor elicited from her that she had never had sexual intercourse previously. Appellant moved for a mistrial which was refused and the refusal was cited on appeal as reversible error. The argument was rejected in this language:

It makes no difference whatsoever whether the victim of rape was a virgin or a prostitute. The offense of rape is committed if the person engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Therefore, prior sexual conduct has no relevancy to the issue in question. We do not think the prejudice was so great as to call for a mistrial, and we think the court acted properly in continuing the trial after admonishing the jury to disregard the improper question and answer.

In the context of the Brewer case that was undoubtedly correct — whether the victim was or was not a virgin was irrelevant to any disputed issue of fact. Appellant and the victim were total strangers to each other and the victim’s sexual history was entirely beyond the scope of the trial.

It does not follow, however, that such evidence is invariably irrelevant. When a female at the very threshold of puberty maintains that her father has been having sexual intercourse with her on a regular basis, sometimes as often as two or three times a week since early childhood, medical evidence that the child demonstrates physical characteristics consistent with prolonged sexual activity has an unmistakable relevance to the factual issue.

While we find no cases of our own touching directly on this subject, cases from other jurisdictions offer some guidance. The sexual history of the victim is frequently said to be irrelevant in rape and sexual abuse, however, the recitation of the rule is often framed in equivocal language such as, “usually,” or “generally.” In Fields v. State, supra, for example, this court stated that it was not “relevant per se.” In State v. Garcia, 673 P.2d 955 (Ariz. 1983), the court held that testimony by a physician that the victim stated to him that she had never had sexual intercourse before the alleged rape had relevance to show that sexual intercourse had occurred on the night in question. In People v. Johnson, 671 P.2d 1917 (Colo. App. 1983), the court held it was not err or for the physician and victim to testify that the victim was a virgin, reasoning that while the Colorado rape shield statute presumes such evidence to be irrelevant, the statute does not specifically prohibit the victim from testifying to the absence of prior sexual activity. In Forrester v. State, 440 N.E.2d 475 (Ind. 1982), a physician testified about the condition of the victim’s external genitalia and that her hymen was recently torn. The defendant argued that this proof was inadmissible because it permitted the jury to infer virginity. The court rejected this challenge, pointing out that the rape shield statute was designed to shield the victim, not the accused. In State v. Singleton, 691 P.2d 67 (N.M. App. 1984), testimony by the victim that she pleaded with the defendant not to rape her because she was a virgin was held to be harmless error. In Jenkins v. State, 274 S.E.2d 618 (C.A. Ga. 1980), the court rejected an argument by appellant that the trial court should have declared a mistrial when a physician testified the victim was a virgin, holding that the evidence was relevant under the circumstances of the case. See also Darrow v. State, 451 So.2d 394 (Cr.App. Ala. 1984), State v. Puyatt, 315 S.E.2d 574 (W. Va. 1984), and Oswald v. State, 715 P.2d 276 (Ala. App. 1986).

Furthermore, we have previously held that this specific type of evidence is relevant. “[W]e will allow such testimony to show similar acts with the same child or other children in the same household when it is helpful in showing ‘a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.’ ” Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), quoting from White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

We conclude that in the context of this case the testimony of Dr. Simpson was relevant and, therefore, its admissibility is governed by A.R.E. Rule 402 and 403. These rules provide that all relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. The trial court made that determination in this case by weighing those considerations and deciding that the medical proof offered by the state was not substantially outweighed by the danger of unfair prejudice, at the same time he elected to permit the defendant to counteract that evidence by proof of the sexual history of the victim which would ordinarily have been barred by the rape shield statute. We cannot say that handling of the issue was wrong or that the discretion applicable to evidentiary rulings of the trial court was abused.

Ill

The Trial Court Erred In Limiting Defense Counsel’s Cross-Examination Of Purported Rape Victim To Incidents Of Masturbation And Sexual Activity With Two Other Persons.

Pursuant to the rape shield statute, Ark. Code Ann. § 16-42-101 (1987), the appellant moved to permit the introduction of evidence of prior sexual activity between the prosecutrix and other persons to rebut proof by the state of her sexual maturity. The defense proposed to prove masturbation by A and acts of sexual intercourse between A and Stacey Hackwith, her half brother, and with another individual. At a pretrial hearing the trial court held that the defense would be permitted to offer this proof. When questioned on direct and on cross-examination A denied the accusations of masturbation but testified with evident candor that she had had intercourse on a single occasion with Stacey Hackwith and on a daily basis for exactly one week with an unnamed boyfriend.

On appeal the appellant contends he should not have been restricted to the foregoing incidents, that he should have been permitted to offer additional proof. We must reject the argument because we find no proffer in the record of the evidence which the appellant proposed to introduce. Whether an appellant is a defendant making a tender under the rape shield statute, or a litigant in general, there must be a proffer in order to obtain a reversal on the basis of a wrongful exclusion of evidence. We have often said we will not reverse a case for another trial only to find that the appellant could not produce the evidence he maintains was wrongly rejected in the first trial, or that such proof is lacking in substance. He must, in other words, demonstrate that he was prejudiced by the exclusion of available evidence. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978); Hill v. State, 250 Ark. 812, 467 S.W.2d 179 (1971).

For the reasons stated, the judgment is affirmed.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. For centuries a deep prejudice has existed against women who bring rape charges. The embarrassment and humiliation which a victim must undergo to prosecute her assailant is well known in legal circles. Victims learn immediately the price they must pay for prosecuting. Even the enactment of protective legislation for rape victims and the more sensitive and sensible investigation of rape cases have not entirely stamped out prejudice. See Ark. Code Ann. § 16-42-101 (1987). The classic defense to a rape case is still to discredit the victim. While a woman no longer has to be dead or produce a severely beaten body to get justice against her assailant, we have not entirely buried our prejudice that somehow the rape victim is partially to blame for the crime.

The same prejudice exists in cases involving child abuse, although with a different twist. In child abuse cases, we do not want to believe it happens. That prejudice, in my mind, led to our decision in Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987), where a majority of this court would not accept strong evidence that a father beat his child to death and his conviction for first degree murder should have stood. It was decided, surely, he did not intend to kill his own child, while the evidence said he did. That same view can lead us to deny the use of relevant and competent evidence that ought to be admissible in a child abuse case.

I write to point out that the testimony of the social worker in this case was admissible. The appellant uses our decision in Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), to argue that it was not admissible. (Actually, the Russell opinion was only a two man opinion; two justices dissented, two justices concurred, and the chief justice did not participate. Russell, therefore, is hardly precedent.) The erroneous statement in the Russell case is: “Lay jurors were fully competent to determine whether the history given by the victim was consistent with sexual abuse.”

The weight of the authority is to the contrary. Jurors are ordinarily not familiar with child abuse, and expert testimony, such as that offered in this case, should be admissible to aid the jurors in their decision. Any juror, who has had personal experience with child abuse, would probably be excused from the panel.

In State v. Myers, 359 N.W.2d 604 (Minn. 1984), Dr. Clare Bell, a clinical psychologist, testified at length about incest and general characteristics that exist in sexually abused children. The court made these observations:

The nature ... of the sexual abuse of children places lay jurors at a disadvantage. Incest is prohibited in all or almost all cultures, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse ....
In the case of a sexually abused child, consent is irrelevant and jurors are often faced with determining the veracity of a young child who tells of a course of conduct carried on over an ill-defined time frame and who appears an uncertain or ambivalent accuser and who may even recant. Background data providing a relevant insight into the puzzling aspects of the child’s conduct and demeanor which the jury could not otherwise bring to its evaluation of her credibility is helpful and appropriate in the cases of sexual abuse of children, . . . and particularly of the children as young as this complainant.

In U.S. v. St. Pierre, 812 F.2d 417 (8th Cir. 1987), the district judge allowed a clinical psychologist, Dr. Curran, to testify about certain traits and characteristics of sexually abused children, as compared to those exhibited by the victim. The Eighth Circuit Court of Appeals upheld the testimony commenting:

These cases present difficult problems for the jury. The testimony of the accused and the victim is generally in direct conflict. The crime is secretive with extreme pressures against revelation, especially when committed in a family setting.

Citing the case of State v. Myers, supra, the Eighth Circuit Court of Appeals went on to say:

That court [Minn.] recognized that the type of testimony presented by Dr. Curran could be very helpful because jurors are at a disadvantage when dealing with sexual abuse.

In State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983), the court dealt with expert testimony of a juvenile counselor and a social worker about child abuse. The court said:

[I] n this instance we are concerned with a child who states she has been the victim of sexual abuse by a member of her family. The experts testified that in this situation the young victim often feels guilty about testifying against someone she loves and wonders if she is doing the right thing in so testifying. It would be useful to the jury to know that not just this victim but many child victims are ambivalent about the forcefulness with which they want to pursue the complaint, and it is not uncommon for them to deny the act ever happened. Explaining this superficially bizarre behavior by identifying its emotional antecedents could help the jury better assess the witness’ credibility.

The court upheld the admissibility of the testimony. The Supreme Court of Nevada has come to the same conclusion. Smith v. State, 100 Nev. 570, 688 P.2d 326 (1984). See also State v. Petrich, 101 Wash. 2d 566, 683 P.2d 173 (1984).

We are witnessing a remarkable increase in the number of child abuse cases. Dr. Roland C. Summit, Head Physician, Community Consultation Service, Clinical Assistant Professor of Psychiatry, Harbor-UCLA Medical Center, Torrance, California, wrote about the child sexual abuse syndrome in Summit, The Sexual Abuse Accommodation Syndrome, 7 Child Abuse and Neglect, pp. 177-192 (1983):

Child sexual abuse has exploded into public awareness during a span of less than five years. . . . The summary message in this explosion of information is that sexual abuse of children is much more common and more damaging to individuals and to society than has been acknowledged by clinical or social scientists.
The explosion of interest creates new hazards for the child victim of sexual abuse since it increases the likelihood of discovery but fails to protect the victim against the secondary assaults of an inconsistent intervention system. The identified child victim encounters an adult world which gives grudging acknowledgement to an abstract concept of child sexual abuse but which challenges and represses the child who presents a specific complaint of victimization. Adult beliefs are dominated by an entrenched and self-protective mythology that passes for common sense. ‘Everybody knows’ that adults must protect themselves from groundless accusations of seductive or vindictive young people. An image persists of nubile adolescents playing dangerous games out of their burgeoning sexual fascination. What everybody does not know, and would not want to know, is that the vast majority of investigated accusations prove valid and that most of the young people were less than eight years old at the time of initiation.
If a respectable, reasonable adult is accused of perverse, assaultive behavior by an uncertain, emotionally distraught child, most adults who hear the accusation will fault the child.

Dr. Summit recites the generally accepted categories of the syndrome, which are secrecy; helplessness; entrapment and accommodation; delayed, conflicted and unconvincing disclosure; and retraction. He bears down on what happens to the child and what the child must face:

The prevailing reality for the most frequent victim of child sexual abuse is not a street or schoolground experience and not some mutual vulnerability to oedipal temptations, but as unprecedented, relentlessly progressive intrusion of sexual acts by an overpowering adult in a one-sided victim-perpetrator relationship. The fact that the perpetrator is often in a trusted and apparently loving position only increases the imbalance of power and underscores the helplessness of the child.
Children often describe their first experiences as waking up to find their father (or stepfather, or mother’s live-in companion) exploring their bodies with hands or mouth. Less frequently, they may find a penis filling their mouth or probing between their legs. Society allows the child one acceptable set of reactions to such an experience. Like the adult victim of rape, the child victim is expected to forcibly resist, to cry for help and to attempt to escape the intrusion. By that standard, almost every child fails.
The normal reaction is to ‘play possum,’ that is to feign sleep, to shift position and to pull up the covers. Small creatures simply do not call on force to deal with overwhelming threat. When there is no place to run, they have no choice but to try to hide. Children generally learn to cope silently with terrors in the night. Bed covers take on magical powers against monsters, but they are no match for human intruders.
It is sad to hear children attacked by attorneys and discredited by juries because they claimed to be molested yet admitted they made no protest nor outcry. The point to emphasize here is not so much the miscarriage of justice as the continuing assault on the child. If the child’s testimony is rejected in court, there is more likely to be a rejection by the mother and other relatives who may be eager to restore trust in the accused adult and to brand the child as malicious.
Adult prejudice is contagious. Without a consistent therapeutic affirmation of innocence, the victim tends to become filled with self-condemnation and self-hate for somehow inviting and allowing the sexual assaults.
As an advocate for the child, both in therapy and in court, it is necessary to recognize that no matter what the circumstances, the child had no choice but to submit quietly and to keep the secret.

Dr. Summit points out that “[wjhatever a child says about sexual abuse, she is likely to reverse it.”

He discusses what has changed:

Sexual abuse of children is not a new phenomenon although its true dimensions are emerging only through recent awareness and study. Children have been subject to molestation, exploitation and intimidation by supposed caretakers throughout history. . . What is changing most in our present generation is the sensitivity to recognize exploitation, to identify blatant inequities in parenting among otherwise apparently adequate families, and to discover that such inequities have a substantial impact on the character development, personality integration and emotional well-being of the more deprived and mistreated children.
In the 1980’s we can no longer afford to be incredulous of basic realities of child abuse.

Finally, he discussed what has been learned from experience:

The sexual abuse accommodation syndrome is derived from the collective experience of dozens of sexual abuse treatment centers in dealing with thousands of reports or complaints of adult victimization of young children. In the vast majority of these cases the identified adult claimed total innocence or admitted only to trivial, well-meaning attempts at ‘sex education,’ wrestling, or affectionate closeness. After a time in treatment the men almost invariably conceded that the child had told the truth. Of the children who were found to have misrepresented their complaints, most had sought to understate the frequency or duration of sexual experiences, even when reports were made in anger and in apparent retaliation against violence or humiliation. Very few children, no more than two or three per thousand, have ever been found to exaggerate or to invent claims of sexual molestation... It has become a maxim among child sexual abuse intervention counselors and investigators that children never fabricate the kinds of explicit sexual manipulations they divulge in complaints or interrogations. . . .

There is no doubt that we are heading in the wrong direction on this subject. Undoubtedly, a majority of other courts would uphold the admissibility of the social worker’s testimony. Roe, Expert Testimony in Child Abuse Cases, 40 U. Miami L. Rev., 97-113 (1985); Note, Expert Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses, 68 B.U.L. Rev. 155-1902 (1988). The reason for a trial is to determine the truth. The rules of evidence are the guidelines that allow us to get there. They should not be used as obstacles.

I would also affirm the judgment.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    O’NEAL FORD, INC. v. Orlando DAVIE
    88-307
    770 S.W.2d 656
    Supreme Court of Arkansas
    Opinion delivered May 30, 1989
    [Rehearing denied July 3, 1989.]

      Eichenbaum, Scott, Miller, Liles & Heister, P.A., by Christopher O. Parker, for appellant.

      Rees Law Firm, by: David Rees and Paul J. Teufel, for appellee.
   David Newbern, Justice.

This is an appeal from a judgment which was returned against the appellant, O’Neal Ford, Inc. (O’Neal), in a deceit action. The appellee, Orlando Davie, purchased a vehicle from O’Neal after receiving a negative response to his question whether the vehicle had been wrecked. O’Neal personnel knew the car had been wrecked. The jury awarded $4,000 in compensatory damages and $35,000 in punitive damages. The trial court entered a remittitur reducing the punitive damages to $20,000. O’Neal argues that there was no substantial evidence to support the $4,000 award, that the court admitted irrelevant and prejudicial evidence showing the condition of the car shortly after it had been wrecked and declared a total loss by its insurer, and that the case should have been transferred to chancery. Mr. Davie cross-appeals from the remittitur, arguing that the court did not find passion or prejudice on the part of the jury or that the court’s conscience was shocked by the $35,000 award. We hold that the evidence was substantial to support the $4,000 award, that the questioned evidence was admissible, that the court was correct in not transferring to chancery, and that the full punitive damages award should be reinstated. Thus, we affirm on appeal and reverse on cross-appeal.

The car was a 1985 Cadillac Fleetwood. It had been owned by a Ms. Hurdle when it was involved in a frontal collision. Mr. Howell, claims manager for Nationwide Insurance Companies, testified the car had massive damage to the front end and frame and he did not think the car would be rebuilt. Kim Morgan purchased the car from a salvage pool and sold it to Mr. Moxley who took it to Mr. Boatman who described the car as “totaled.” Boatman rebuilt the car, and then Moxley sold it to O’Neal. The repair included replacing some three feet of the frame. Mr. Pack, an O’Neal salesman, sold the car to Ms. Norris who kept it a short time and traded it back to O’Neal. Pack testified he knew the car had been wrecked.

Davie testified he asked if the car had been wrecked before he purchased it. The O’Neal salesman with whom he dealt said it had not, although another O’Neal representative told him it had some paint and body damage. Davie ultimately signed a document recognizing that there had been “frame and body work.” Although the form he signed had a place to show the dollar amount of the value of the repair work, it was left blank.

1. Substantial evidence

Given Davie’s testimony that he was told the car had not been wrecked and the admitted knowledge on the part of Pack that the car had been wrecked, we find substantial evidence of misrepresentation. The primary thrust of O’Neal’s first point, however, is that the amount of the compensatory award is not supported by substantial evidence.

Davie presented the expert testimony of Mr. Bourland that the value of a wrecked and rebuilt vehicle like the one in question was $10,000. He testified that if the car had been “without damage” it would have been worth $15,000 to $15,500. He testified if the car had not been wrecked and rebuilt but had had only paint and body work, it would have been worth $ 13,000. His ultimate testimony thus was that the difference between the value of the car as represented and its actual value was $3,000, although he said on cross-examination that “[i]f Nathan Pack paid $11,500 for the car that is what it was worth.”

We find there was substantial evidence to support the $4,000 award, given Bourland’s opinion that the car was worth $10,000 and the fact that O’Neal’s price for the car to Davie was $13,995. Perhaps the better rule of damages in a misrepresentation case is the difference between the actual value of the chattel and its value had it been as represented. We said that in Greiner Motor Co. v. Sumpter, 244 Ark. 736, 427 S.W.2d 8 (1968). We recognized, however, that we had also approved a measure of damages constituted of the difference between the actual value of the chattel and the contract price, citing Union Motor Co. v. Turbiville, 223 Ark. 92, 264 S.W.2d 592 (1954), and Note, 1 Ark. L. Rev. 308 (1947). The latter was obviously the basis of the jury award in this case, and there was substantial evidence to support it, given Bourland’s initial opinion of the value of the car and the evidence showing the extent of the damage to the car before it was repaired.

2. Wreck evidence

The trial court was asked to preclude the introduction of evidence about the condition of the car before it was rebuilt on the ground that the O’Neal personnel had no idea how badly it had been wrecked. The judge refused to permit Davie to present evidence about personal injuries suffered by Ms. Hurdle in the collision, but did permit pictures of the wrecked car to be introduced.

Davie had the burden of proving his damages resulting from the misrepresentation. Storthz v. Commercial Nat’l Bank, 276 Ark. 10, 631 S.W.2d 613 (1982). The evidence in question tended to prove the car was one which had been wrecked and that the damage was so severe it had to be “rebuilt.” Davie’s expert witness, Bourland, gave a figure as the value of a “rebuilt” car as opposed to one which merely had paint and body damage. Whether the car in question was a rebuilt wreck or one with only paint and body work, as Davie was told, thus was an issue. The evidence was relevant to that issue, and as mentioned above, to the value of the car when Davie purchased it

3. Transfer to chancery

O’Neal argues it was error for the court not to grant its motion to transfer to chancery. The motion was made on the basis that Davie had signed a contract acknowledging that O’Neal sold the car “as is” with no warranty, and that by contending O’Neal had a duty beyond the contract Davie was seeking reformation of the contract which is an equitable remedy.

O’Neal cites Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S. W. 2d 518 (1972), in which we noted that evidence of fraud as a basis for reformation of a solemn instrument must be clear and convincing. There, the odometer on the vehicle sold by the dealer had been rolled back. We wrote that the contract in that case by which the plaintiff purchased the vehicle contained an acknowledgment by him that there were no warranties and thus the standard of proof of misrepresentation was preponderance of the evidence, rather than the reformation standard.

O’Neal argues that in this case there was a statement in the contract about damage to the vehicle which controls this tort action. We cannot agree. Although Davie was told there was paint and body work on the car, and although he signed a statement acknowledging paint and frame work in an unspecified amount, that does not refute his statement that he was also told the car had not been wrecked. While we can imagine how paint and body work or even frame work might be required because of a manufacturing defect or might otherwise become necessary on a car which had not been involved in a collision, we need not speculate. It is enough to point out that the writing did not address the question whether the car had been wrecked, and thus, as in the Ray Dodge case, we do not apply the reformation or clear and convincing standard here, and we can think of no reason for transferring this case to the chancery court.

4. Cross-appeal

In the course of rulings that the punitive damages should be reduced, the trial judge remarked that he was not shocked by the amount but was mildly surprised. In W.M. Bashlin v. Smith, 277 Ark. 406, 643 S.W.2d 246 (1982), it was held that the standard for determining whether a damages verdict is excessive is “whether it shocks the conscience of the court or demonstrates that jurors were motivated by passion or prejudice.” There the damages award was compensatory. We applied the same standard with respect to punitive damages in Morrisonv. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981), where we reversed the trial judge’s conditional remittitur.

In the Morrison case, as in the case before us now, there was no finding that the jury was either controlled by passion or prejudice or that the award was so great that it shocked the conscience of the court. We made it clear that “ [a] belief by a trial court that damages are excessive is not, standing alone, a sufficient ground for ordering a reduction. If that was the standard, the great discretion of the jury would be abrogated.” 274 Ark. at 364-365, 625 S.W.2d at 455.

Affirmed on appeal, reversed on cross-appeal.


author: Tom Glaze, Justice. Steele, Hays, Justice,

text:
    William H. DELAFIELD v. Beverly S. LEWIS
    89-21
    770 S.W.2d 659
    Supreme Court of Arkansas
    Opinion delivered May 30, 1989
    [Rehearing denied July 3, 1989.]

      Crumpler, O’Connor & Wynne, for appellant.

      Dickey Law Firm, P.A., for appellee.
   Tom Glaze, Justice.

This case involves the interpretation of Ark. Stat. Ann. § 62-2125 (Repl. 1971) [now Ark. Code Ann. § 28-40-103 (1987)], as amended by Act 166 of 1963 (sometimes referred to hereinafter as the 1963 Act). In this appeal, the appellant contends that the trial court’s May 16, 1988 order admitting to probate the will of a non-resident, who died in 1962, was error. He argues the appellee’s application to probate the foreign will was barred by the five-year limitation provided by § 62-2125. Appellee submits the trial court’s decision was correct because the limitation was removed when the General Assembly passed Act 166 of 1963, amending § 62-2125.

The deceased, Jessie Spears, was a resident of Illinois and died testate on September 26, 1962. Her will was probated in Illinois by order dated November 19, 1962; appellee, Beverly S. Lewis, was appointed executrix, and under the will, she took all of the decedent’s property except for a ring, which the deceased gave her first cousin, Mary Delafield — the appellant’s mother.

In 1968, appellee sought an order to probate the deceased’s foreign will in Arkansas after the appellee discovered the decedent had mineral interests located here. Appellant, purporting to be the decedent’s only living heir, contested the appellee’s petition for probate and appointment as personal representative, requested the petition be denied and argued he should be entitled to the deceased’s mineral interests in accordance with the state’s intestacy laws. Both parties filed their respective summary judgment motions, and the court denied the appellant’s and granted the appellee’s requests.

The broad issue for us to consider is whether the 1963 Act is applicable to the facts in this case. If it is, then the trial court was correct in admitting the decedent’s foreign will because the 1963 amendatory Act removed the five year time limit previously required under § 62-2125. On the other hand, if the old law controls, the five-year limitation appears to bar the decedent’s will because she died in 1962 and the five year period from her death has long since past.

Prior case law has already established that the Probate Code provision on limitation was intended to operate prospectively only. See Horn v. Horn, 226 Ark. 27, 287 S.W.2d 586 (1956); Hudson v. Hudson, 219 Ark. 211, 242 S.W.2d 154 (1951). That being so, it would seem the 1963 Act (the present Probate Code limitation provision) would in no way affect the deceased’s will since she died in 1962 and her will was probated in Illinois the same year. Nevertheless, some of our earlier cases recite language that would seem to give merit to the trial court’s position that when the 1963 Act went into effect, the five-year limitation required under the old law had not yet expired. As a consequence, the trial court reasoned and held that the 1963 Act had changed the remedy — removing the five-year limit to no limitation — at a time when appellee’s right to probate the will was still viable, i.e., not barred, and therefore, her time to probate had been extended indefinitely by the new Act. In support of this view, we recognize language used in prior cases that states that a new limitation statute will apply to old causes of action which had not expired on the date the new statute became effective. Horn, 226 Ark. at 29, 287 S.W.2d at 587; for other cases employing the same rule or language, see Hill v. Gregory, 64 Ark. 317, 42 S.W. 408 (1897); Moore v. McLendon, 10 Ark. 512 (1849-50).

In view of the trial court’s specific holding, we now turn to the narrow issue presented by the facts in this case, viz., whether the 1963 Act applied to the deceased’s will and thereby extended the time to probate it, since, although she died in 1962, the 1963 Act went into effect well within the five-year limitation period required by the old law.

Our holding in the more recent cases of Morton v. Tullgren, 263 Ark. 69, 563 S.W.2d 422 (1978), and Ragland v. Travenol Laboratories, Inc., 286 Ark. 33, 689 S.W.2d 349 (1985), compel a negative answer. The facts in Morton concerned a security transaction that occurred on or about May 12, 1972. The plaintiffs filed suit in connection with that transaction on May 12, 1975, which was after the three-year limitation period in effect at the time the 1972 transaction was consummated. The plaintiffs argued their time to commence suit had been extended because a 1973 act had enlarged the limitation period to five years. The Morton court rejected the plaintiffs’ argument, stating as follows:

The critical question is one of legislative intent. There is a split of authority on the subject, and it appears that it may be the view of a majority of the jurisdictions passing on the question that amendments extending the period of the statute of limitations apply to causes of action accrued, but not already barred, unless the amendatory act expressly provides otherwise. The view taken in this state, however, is to the contrary, i.e., the amendatory act does not extend the statutory period unless the legislative intention that it do so is expressly stated. (Emphasis added.)

In Ragland, we refused to retreat from the position we took in Morton, by saying the following:

It is true that in some jurisdictions new periods of limitation are applied to claims not yet barred when the statute is passed, but after considering the matter in detail this court took the position that, since legislative acts are not presumed to operate retroactively, a statute extending the period of limitations will not be so construed unless the statute is expressly made retroactive. Morton v. Tullgren, 263 Ark. 69, 75, 563 S.W.2d 422 (1978). We adhere to that view.

In view of this court’s holdings in Morton and Ragland, it is clear that the trial court erred in its attempt to apply the 1963 Act to extend the time to allow appellee to file the deceased’s will in Arkansas. The old law, containing the five-year limitation, barred the probate of the deceased’s will. In reaching this decision, we considered, but rejected, the suggestion that the case law established in Morton and Ragland may not be applicable to probate proceedings and the limitations provided for such proceedings. When we review prior probate cases that concern similar limitation issues to the one posed in the present case, we discover this court indiscriminately cited and relied on language and rules set out in non-probate cases. See Horn, 226 Ark. 27, 287 S.W.2d 586; Hudson, 219 Ark. 211, 242 S.W.2d 154. By the same token, the Morton court, in reaching its decision, relied, at least in part, on our probate decisions in Horn and Hudson.

Of course, an obvious distinction exists between probate proceedings and contract or debt cases since the applicable limitation periods concerning the latter cases are triggered when a cause accrues, viz., at the time of a breach or when the note miatures. A probate proceeding involves no cause of action but serves to make a will effectual for the purpose of proving title to or the right to the possession of any real or personal property disposed of by the will. See Ark. Code Ann. § 28-40-104 (1987). Thus, any limitation period is initiated by the death of a decedent rather than any accrued cause of action. Regardless of this fine distinction which can be made between probate proceedings and other type cases, such a distinction does not warrant a different rule of construction when deciding the interpretation or applicability of limitation provisions that might allow or bar a person from initiating that proceeding or action.

For the reasons set out above, we must reverse the trial court’s decision admitting the decedent’s will to probate.

Holt, C.J., Hickman, J. and Hays, J., dissent.

Steele, Hays, Justice,

dissenting. Our cases give us two options: we can reverse the trial court, follow Morton v. Tullgren, 263 Ark. 69, 563 S.W.2d 422 (1978), a position rejected by a majority of courts, and thus defeat the certain intent of the testatrix in the disposition of her estate. Or we can follow Horn v. Horn, Administrator, 226 Ark. 27, 287 S.W.2d 586 (1956), and Sims v. Schavey, 234 Ark. 166, 351 S.W.2d 145 (1961), affirm the trial court, uphold the will and, I believe, achieve exactly the result intended by the legislature in the enactment of Ark. Code Ann. § 28-40-103(c). The latter course seems more appropriate to me.

Holt, C.J., and Hickman, J., join in this dissent.


author: Tóm Glaze, Justice.

text:
    Clifton STANTON v. STATE of Arkansas
    CR 88-199
    770 S.W.2d 147
    Supreme Court of Arkansas
    Opinion delivered May 30, 1989

      Terry Crabtree, for appellant.

      Steve Clark, Att’y Gen., by: DavidB. Eberhard, Asst. Att’y Gen., for appellee.
   Tóm Glaze, Justice.

This is an appeal from the trial court’s denial of the appellant’s petition for post-conviction relief without an evidentiary hearing. Appellant Clifton Stanton was convicted of murder in the first degree and was sentenced to forty (40) years imprisonment. He did not appeal his conviction, but he filed a timely Rule 37 petition alleging among other things ineffective assistance of counsel.

The appellant failed to abstract the court’s order denying his Rule 37 petition, and the state did not provide a supplemental abstract. This court has held that the judgment or decree appealed from is ordinarily an essential component of the abstract. Brown v. State, 298 Ark. 396, 767 S.W.2d 313 (1989); Davis v. Wingfield, 297 Ark. 57, 759 S.W.2d 219 (1988). Because the appellant has failed to abstract the trial court’s order, we affirm pursuant to Ark. Sup. Ct. R. 9(e)(1).

Affirmed.


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

text:
    Jonas Hoten WHITMORE v. STATE of Arkansas
    CR 87-168
    771 S.W.2d 266
    Supreme Court of Arkansas
    Opinion delivered May 30, 1989

      Allen & O’Hern, by: Arthur L. Allen, for appellant.

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

Petitioner, Jonas Hoten Whitmore, seeks post-conviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. While seeking relief before this court, Whitmore also sought to intervene as next friend in the case of Simmons v. State, CR 89-45, so Whitmore could argue certain constitutional issues concerning whether Arkansas is required to hold appellate reviews in all capital cases, including those where the convicted defendant waives such a review. This court, finding Whitmore had no standing to intervene on behalf of Simmons, promptly denied his request. The United States Supreme Court subsequently granted Whitmore’s petition for certiorari after our denial of his motion. The court also stayed the execution date for Ronald Gene Simmons.

The Whitmore and Simmons cases are further examples of a chain of Arkansas cases that reveal how the state and federal judicial systems have permitted applications for post-conviction remedies to get out of control. By our action today, we intend to limit or narrow post-conviction relief by abolishing Criminal Procedure Rule 37. As the United States Supreme Court said in Pennsylvania v. Finley, 107A S. Ct. 1990 (1987), states are not obligated to provide for post-conviction relief after the defendant has failed to secure relief through direct review of his conviction. By abolishing Rule 37, a defendant may still petition for a writ of habeas corpus — a narrower remedy than Rule 37 — but our action will at least curtail some of the abuses that result from the inconsistent and meritless claims that petitioners lodge under the broader relief afforded under Rule 37.

Whitmore’s Rule 37 petition here and his intervention in the Simmons’s case, now pending in the United States Supreme Court, depict only one of the problems — albeit an absurd one — that the courts face when attempting to bring an end to criminal cases once they are launched into the procedural appellate and post-conviction maze. In his post-conviction petition now before us, Whitmore claims that he did not receive a fair trial, because, among other things, his trial attorney was ineffective. In support of his argument, he contends his trial counsel failed to present available evidence that Whitmore had a diminished capacity when he killed his victim. Whitmore also points to his lengthy psychiatric history as well as to his alcoholism and incest and sexual abuse that occurred in his family. In sum, Whitmore objects that his trial counsel made no use of Whitmore’s psychiatric evidence to show either diminished capacity as to his guilt or mitigating circumstances at the penalty phase. Further, Whit-more contends that he is presently insane. In pursuing his petition before the United States Supreme Court, Whitmore makes no mention whatsoever of his pending petition in this court and the diminished capacity claims that he asserts in the petition.

Obviously, if Whitmore has a diminished capacity or psychiatric problem, how can he have standing to intervene in behalf of Simmons? In Rees v. Peyton, 384 U.S. 312 (1966), the Supreme Court held that if a defendant is determined to be competent, then a next friend has no standing to pursue further proceedings when the defendant chooses not to proceed. See Gilmore v. Utah, 429 U.S. 1012 (1976), where the Supreme Court reversed the record bearing on Gilmore’s competency and decided his mother did not have standing to speak for him. Here a state trial court, this court and a federal district court have either ordered psychiatric examinations or reviewed those examinations and have concluded Simmons has the capacity to waive his right to appeal or refuse to pursue any claims he may have. Nonetheless, the United States Supreme Court has allowed Whitmore, who has placed his own mental capacity in issue in a pending state proceeding, to intervene on behalf of Simmons so that Whitmore can argue' claims Simmons steadfastly waives and refuses to raise. If the judicial system is to maintain its integrity, we can ill afford to permit such a willful and improper manipulation of post-conviction procedures by a defendant.

Unfortunately, other abuses of our post-conviction remedies continue to occur besides the one we have here. In our recent case of Robertson v. State, 298 Ark. 131, 765 S.W.2d 936 (1989), Justice Hickman, in a concurring opinion, recounted the history of our review of capital cases. See also Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986) (Hickman, J., concurring), and Ruiz & Van Denton v. State, 280 Ark. 190, 655 S.W.2d 441 (1983) (Hickman, J., concurring). Justice Hickman cited capital cases that appeared to have come to the end of the direct appeal and post-conviction relief processes, only to find that the cases — some of which he identifies by name — have entered the federal judicial machinery where they seemingly disappear. As Justice Hickman noted, our court affirmed Eddie Lee Miller’s conviction in 1980, but Miller filed a habeas petition in federal district court in 1981. Eight years have passed and the federal court has failed to rule on Miller’s petition. Clay Anthony Ford and Darrell Wayne Hill’s cases have been pending in federal district court since January 1983 and February 1983, respectively, and no final decisions, as yet, have been entered by the federal court. There are others, as well, but it is of little value to repeat here those cases already fully identified in Justice Hickman’s earlier concurring opinion. Suffice it to say, that despite this court’s best efforts to expedite and review these serious appeals and post-conviction petitions, these cases inevitably end up in the federal judicial system, where too often they languish.

Finally, we note the burgeoning number of post-conviction petitions filed by defendants which reflects not only the increase in the number of inmates in recent years, but also the defendants’ increased awareness that they have nothing to lose by filing such petitions. In most cases, this court dismisses these petitions because the claims or allegations are meritless. Nonetheless, most of these petitions will be filed in habeas form with the federal courts and will be disposed of once again by those courts. In this respect, the state Attorney General’s office reports that, as of May 3,1989, there were 358 petitions for writs of habeas corpus pending in federal district courts to which the state had responded. Such petitions, of course, are not decided by the federal court until after the inmate has pursued his remedy in state court. Meanwhile, the number of Rule 37 petitions in this state continues to rise. As of May 3, 1989, 108 Rule 37 petitions and 162 pro se motions have been filed in this court since January 1, 1988, and in addition to those petitions, and for the same period of time, this court’s legal staff has answered 1,910 letters from inmates, who generally are, in some form or another, seeking relief. By way of comparison, this court handled only forty-three Rule 37 petitions for the entire year of 1983; for that same year, the court responded to approximately 900 inmate letters.

Having now benefited from years of experience and reviews of post-conviction claims, we abolish Rule 37 recognizing how this state’s post-conviction Rule has served to cause the review of criminal convictions to become an interminable process, rather than to improve the system of justice, as this court originally intended by adopting such remedies. In re: Rule 37, Rules of Criminal Procedure, 293 Ark. 609, 732 S.W.2d 458 (1987). Our action today will cause convicted criminal defendants to assert their claims and defenses on direct appeal rather than to allow such defenses years later, which is possible under present post-conviction remedies. In our view, this new expeditious procedure will have a beneficial effect of placing both state and federal courts in a position of considering the more legitimate and serious claims a petitioner may have when seeking relief from a questionable verdict. On the other hand, a defendant will have less opportunity to misuse the federal and state systems to develop legal theories that unnecessarily prolong meritless cases. For the reasons stated above, we abolish Rule 37 effective July 1, 1989, but in abolishing Rule 37, we issue a per curiam this date that provides that persons, who have been convicted and sentenced during the existence of Rule 37, may still proceed under that Rule. By the same per curiam, we amend Rule 36.4 to provide that a defendant may assert his or her claim of ineffective counsel on direct appeal.

Now, we turn to the merits of Whitmore’s Rule 37 petition. In 1987, Whitmore was found guilty by a jury of capital felony murder in the 1986 stabbing death of Essie Mae Black. We affirmed, Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988), and Whitmore now seeks post-conviction relief pursuant to Rule 37.

Petitioner first alleges that he was not afforded the effective assistance of counsel guaranteed by the constitution and laws of the United States and this state in either the guilt or penalty phase of his bifurcated trial. When determining whether there was effective assistance of counsel, this court evaluates the claim according to the criteria set out by the United States Supreme Court in Strickland v. Washington. In Strickland, the Court held that the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result. The criteria apply to a capital sentencing proceeding as well as the guilt phase of the trial since the proceeding is sufficiently like a trial in its adversarial format that counsel’s role in the proceeding is comparable to counsel’s role at trial. To prove ineffective assistance of counsel under the Strickland standard, the petitioner must show that counsel’s performance was deficient in that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Both showings are necessary before it can be said that the conviction or death sentence resulted from a breakdown in the adversarial process that renders the result unreliable.

There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner has the burden of overcoming that presumption by identifying the acts and omissions of counsel which when viewed from counsel’s perspective at the time of trial could not have been the result of reasonable professional judgment. Even if counsel’s conduct is shown to be professionally unreasonable, the judgment must stand, unless the petitioner demonstrates that the error had a prejudicial effect on the actual outcome of the proceeding. A reasonable probability that, but for counsel’s conduct the result of the proceeding would have been different, is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668 (1984); Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

Petitioner first contends that counsel was ineffective in that counsel elicited in the guilt phase of his trial that he had been previously convicted of a violent felony more than twenty years before and also failed to object when the state elicited testimony that he had been previously convicted of forgery more than twenty years before trial. Petitioner argues that under Rule 609(b) of the Arkansas Uniform Rules of Evidence the evidence of the prior crimes would have been inadmissible in the guilt phase. Petitioner concludes that the outcome of the guilt phase probably would have been different had the jury not known about the prior convictions.

We do not agree with petitioner’s conclusion. There was overwhelming evidence that petitioner killed the victim and stole her money. When the totality of the evidence is considered, it cannot be said that there was a reasonable probability that the jury would have reached a different verdict in the guilt phase had it not known of the prior convictions.

With respect to the conviction, the prosecutor did not inquire as to when the forgery conviction was obtained. Although petitioner now argues that the forgery conviction was more than twenty years old and proof of it was not admissible for the purposes of impeachment under Rule 609, there was evidence admitted which indicated that petitioner had been convicted of forgery in California and that his probation was revoked in 1979 on that charge. For the purposes of impeachment, evidence of the California conviction would have been admissible as not more than ten years had elapsed since petitioner’s release from the confinement imposed for the conviction.

Petitioner next asserts that counsel should have objected in the penalty phase to the submission to the jury of the aggravating circumstance that the capital murder was committed for the purpose of avoiding or preventing arrest or effecting an escape from custody. He reasons that because the underlying felony of the capital murder charge was robbery and one of the elements of robbery is that “with the purpose of committing theft or resisting apprehension immediately thereafter a person employs or threatens to employ physical force upon another,” the element of “resisting apprehension immediately thereafter” was duplicated and that such duplication at the time of petitioner’s trial was prohibited as “double counting” under Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985). Petitioner notes that this court held in O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988), that a similar sort of double counting is permitted under the United States Supreme Court’s decision in Lowenfield v. Phelps, 485 U.S. 944 (1988). He states that he does not agree with the interpretation given to Lowenfield by this court and further points out that Lowenfield was not in effect at the time of petitioner’s trial. Petitioner has presented nothing to demonstrate that Lowenfield did not properly overrule Collins-, and, moreover, the state here amended its information to delete the phrase “resisting apprehension immediately thereafter,” and the trial court did not include the element of “resisting apprehension immediately thereafter” when it instructed the jury on the definition of robbery.

In a second attack on the aggravating circumstance that the capital felony murder was committed for the purpose of avoiding or preventing an arrest, petitioner argues that the aggravating’ circumstance is vague and overbroad. We have rejected this argument, Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); therefore, counsel could not have been ineffective in failing to raise a meritless question.

Petitioner raises an additional claim which this court has already settled: that there is an unconstitutionally impermissible overlap between the capital felony murder statute and the first degree murder statute. He concedes that this court has ruled that such an overlap is not constitutionally defective, Ruiz & Van Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), and states that the issue is raised again in this petition merely to preserve it for review in federal court.

Petitioner also raises two related allegations of ineffective assistance of counsel: (1) counsel was ineffective in that counsel failed to present available evidence in the guilt phase of petitioner’s diminished capacity; and (2) counsel was ineffective in that counsel failed to present in the penalty phase any evidence of mitigating circumstances. Petitioner supports the allegations with contentions that (1) counsel said in the opening statement that petitioner probably committed the crime but did not have the requisite mental state required to sustain a conviction for capital murder, thus making the question of his competence of great importance to the outcome of the trial; (2) the records outlining his lengthy psychiatric history were available; (3) a history of sexual abuse and incest in his family was available; (4) there was a history of alcoholism which could have been brought out; and (5) he had made statements while he was in custody which suggested that he was out-of-touch with reality. Petitioner also mentions that his father and four children were not contacted by counsel to learn what mitigating evidence they could have presented in the penalty phase. The state expresses its willingness that an evidentiary hearing be permitted in circuit court on the issue of whether counsel was ineffective in respect to the allegations in question, but we do not find that petitioner has met his burden of demonstrating that a hearing is warranted.

This court will not grant an evidentiary hearing on an allegation which is not supported by specific facts from which it can be concluded that the petitioner suffered some actual prejudice. O’Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989); Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Furthermore, the supporting facts must appear in the petition; the petitioner cannot rely on the possibility that facts will be elicited from witnesses if a hearing is held. See Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983). Petitioner’s bald statements that he had a history of psychiatric treatment, alcoholism, and severe dysfunction in his family are not sufficient to establish prejudice because he has offered no details that a particular witness or witnesses could have testified to particular facts which would in reasonable probability have affected the outcome of the trial. The strong presumption in favor of counsel’s effectiveness cannot be overcome by the mere claim that petitioner had relatives or other witnesses who might have had some mitigating evidence to present.

Petitioner next argues that Ark. Code Ann. § 5-4-604(5) (1987), which sets out as an aggravating circumstance that the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody, is unconstitutionally vague and overbroad and fails to adequately channel the discretion of the jury in assessing the appropriateness of the death penalty. As stated earlier when addressing counsel’s attack on the same aggravating circumstance couched in terms of ineffective assistance of counsel, we have held in other cases that the aggravating circumstance is not unconstitutional. Hill v. State, 278 Ark. 194, 644 S.W.2d 282. We need not reach the issue again in this case, however, because Rule 37 does not provide a means to attack a conviction or sentence on some argument that was not raised at trial when it could have been raised. See White v. State, 290 Ark. 77, 716 S.W.2d 203 (1986). The only exception is made where an issue is so fundamental as to render the judgment of conviction or sentence absolutely void. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985). The allegation raised by petitioner is not sufficient to void the judgment or sentence.

Petitioner also argues that the aggravating circumstance that the murder was committed for the purpose of avoiding arrest duplicates an element of the underlying offense and thus constitutes impermissible double counting. As with the last allegation, the question could have been presented at trial and is not sufficient to void the conviction. It is not therefore cognizable under our post-conviction rule. Travis v. State, 286 Ark. 26, 688 S.W.2d 935.

Petitioner next contends that the Arkansas death penalty statute is unconstitutional because it requires the jury to recommend a sentence of death if it unanimously returns certain written findings that an aggravating circumstance or circumstances exist. This issue is also one which could have been raised at trial and is not sufficient to void the conviction. Id. Petitioner argues further, however, that counsel was ineffective for not raising the same issue, a claim which is cognizable under Rule 37. We do not find counsel to have been ineffective for failing to raise the question. This court has consistently held that Ark. Code Ann. § 5-4-603(a-c) (1987), is proper, when the jury is instructed in accordance with AMCI 1509, as was the jury in petitioner’s case, that it can, by finding that circumstances will not warrant the imposition of the death penalty, return a verdict of life without parole. See Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988); Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, 465 U.S. 1051 (1984).

Petitioner next argues that the overlap between the definitions of capital and first degree murder under Arkansas law makes the statute void for vagueness and gives the prosecutor discretion not permitted under Furman v. Georgia, 408 U.S. 238 (1972). This argument is again one which could have been raised at trial and is not sufficient to void the conviction. Travis, 286 Ark. 26, 688 S.W.2d 935.

Petitioner takes issue with this court’s interpretation of Arkansas statutory scheme by which we held on appeal that it was not unconstitutional for petitioner’s twenty-three year old conviction for attempted robbery to be used as an aggravated circumstance. He further asks this court to review its decision holding that the. custodial statements obtained from the petitioner were not in violation of his constitutional rights. As both issues were settled on appeal, the questions will not be addressed again under Rule 37. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981).

Finally, petitioner contends that he is presently insane and that it is violative of the eighth amendment prohibition against cruel and unusual punishment to execute an insane person. As Rule 37 does not apply to the execution of a sentence, petitioner should make his argument in a clemency proceeding to the Governor.

Petition denied.

Purtle and Hays, JJ., dissent.

John I. Purtle, Justice,

dissenting. Petitioner’s case is presently pending before the United States Supreme Court. Under the circumstances this court should pause in its haste to dismantle post-conviction relief until after the United States Supreme Court decides the matter.

By repealing Rule 37, which was established solely to enable us to correct gross errors committed by trial courts which could not have been presented on direct appeal, we evade our responsibility to oversee the judicial process of criminal justice in this state, and, worse, we deny justice, as well. Rule 37 has come to be perceived as a strategem employed by criminals to delay justice. That, however, has never been the purpose of the rule, any more than it has been the purpose of trial by jury. I do not think the rule has been abused, nor do I believe this court is overburdened as a result of the petitions resulting from Rule 37.

The majority opinion is primarily intended to soothe the conscience of the court. If this were not the case, we would simply do as we usually do when presented with a petition for Rule 37 relief and deny it without issuing an opinion. Truthfully, the court has been looking for an excuse to abolish this rule for a long time. The sordid facts of this case are used as justification to destroy the only available means of obtaining relief for those who may suffer a miscarriage of justice. Inevitably, meritless petitions are filed on occasion. Granted, our case load is heavy. But then so is the case load in the federal courts. Through this opinion, we are simply trying to channel our Rule 37 petitions into federal courts through actions for habeas corpus. We may thus have cut down on our work load, but we have also increased the burden for other courts and, in some cases, slammed shut the door to justice.

The majority opinion is nothing less than an invitation to the Supreme Court of the United States, or some federal judge, to fashion another Rule 37 or something like it. The result may well be more work for us. In any event, it is not our case load that should be the determining factor in this matter, but rather the demands of justice in each case where a claim for relief is made.

We ought to consider shortening the time limit for filing for post-conviction relief before abolishing Rule 37. A one-year limit, except for void or voidable sentences, seems reasonable to me, at least on a trial basis. The fact that some prisoners may seek relief on meritless grounds does not warrant our closing this avenue to possible relief for the deserving. Even this court is not immune from error — why else do we permit petitions for rehearing? Sometimes appeals seem to have no merit but that is no excuse for abolishing appeals.

The statistics cited by the majority sound horrendous, awful, but upon closer scrutiny a different light is shed on the subject. There are about 5,500 residents in the Arkansas Department of Correction on any given day. The federal courts have limited the Department of Correction to that number at any one time. Because many residents of the Department of Correction are legally released every day, the total number within the department, since January 1, 1988, is actually much greater than the ceiling imposed by the federal courts.

About 270 Rule 37 and pro se motions have been filed since January, 1988. This amounts to about 4.5 percent of the population in state prisons. During the same period of time, 1,910 letters addressed to the court were written by prisoners. This volume of correspondence amounts to about one out of every three inmates writing one letter once a year. If these figures are adjusted to include those released during the base period, the percentage of inmates writing or petitioning becomes even smaller.

We ought not to take out our frustration with the overburdened system on the residents of our penal institutions simply because the federal courts do not move fast enough to suit us. We ought instead to endeavor to avoid further clogging the federal dockets as well as our own. The majority opinion is the judicial equivalent of a rescuer handing a drowning person a sack of rocks. Our function should be to solve problems, not to exacerbate existing ones or to create new ones.

The per curiam issued today adding a paragraph to Rule 36.4 is little more than window dressing. The average person who has just been convicted may well not realize his defense counsel was ineffective. It frequently takes some time for one to reach such a conclusion. Meanwhile, the convicted person is usually locked away without any reasonable opportunity to investigate or even to decide whether he should undertake the Herculean labor of proving the truth about his counsel.

This change is neither practical nor fair. It will, however, probably cause most of those convicted immediately to charge their trial lawyers with ineffectiveness. In other words, we are in fact increasing rather than decreasing the workload of this court and that of the trial courts. The constitutional right to effective assistance of counsel demands that an accused be given an opportunity to intelligently consider the matter.

The cost of maintaining a person on parole or probation is a small fraction of the cost of keeping that person in custody. The mood of society today is in favor of more and bigger jails, but at the same time the public is unwilling to pay for them. The price of maintaining our prisons will soon be more than all other costs of supporting our government. If we are trying to solve the criminal population problem for society, we should try to persuade citizens at large and the legal system in particular to look at crime prevention and rehabilitation, instead of focusing on detention and retribution. Bigger jails and longer sentences will not, by themselves, solve our crime problems.

Historically, the welfare of this nation has rested primarily in the hands of the lawyers, and especially the judiciary. We should therefore lead the way with the light of law and reason rather than follow the dictates of popular opinion and passion. The whole of the inmate population should not be included in the retribution required of one of its number. What happens to Jonas Whitmore as an individual is not more important than what happens to the entire criminal justice system.

Steele Hays, Justice, dissenting. While I share much of the dissatisfaction with Rule 37 as expressed in the majority’s opinion, I believe the fault lies not so much in the use of the rule as in its misuse. But that can be remedied, at least in part, and in my view we should revise Rule 37 rather than abolish it. I respectfully dissent to the order entered in this case.

       Arkansas courts have held that habeas corpus petitions are restricted to questions of whether the commitment is valid on its face or whether the convicting court had proper jurisdiction. Blevins v. Norris, 291 Ark.70, 722 S.W.2d 573 (1987); Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961); State, ex rel Attorney General v. Auten, 211 Ark. 703, 202 S.W.2d 763 (1947). Criminal Procedure Rule 37 provides a remedy for prisoners, under sentence of a circuit court, who allege: (a) that the sentence was imposed in violation of the Constitution and laws of the United States or Arkansas; or (b) that the court imposing sentence was without jurisdiction to do so; or (c) that the sentence was in excess of the maximum authorized by law, or (d) that the sentence is otherwise subject to collateral attack.

       These figures do not include the post-conviction petitions that have been filed with and are pending in the state trial courts.


author: Donald J. Adams, Special Chief Justice. David Newbern, Justice, Russ Meeks, Special Justice,

text:
    ARKANSAS STATE MEDICAL BOARD, et al. v. LEIPZIG
    88-270
    770 S.W.2d 661
    Supreme Court of Arkansas
    Opinion delivered May 30, 1989
    [Rehearing denied June 26, 1989.]

      Mitchell & Roachell, by: Michael W Mitchell and Paul J. Ward, for appellants.

      Cearley Law Firm, by: Robert M. Cearley, Jr.; Kaplan, Brewer & Miller, P.A., by: Philip E. Kaplan, for appellee.

      Purtle, J., and Special Justice Russell Meeks would grant rehearing.
      Holt, C.J., and Glaze, J., not participating.

   Donald J. Adams, Special Chief Justice.

Appellee Bruce Leipzig, M.D., filed suit in Chancery Court of Pulaski County, First Division, against appellant Arkansas State Medical Board and the individual board members seeking an injunction against the board and its members. The action was brought pursuant to 42U.S.C. §§ 1983 and 1988, and alleged that if an injunction was not entered, appellee would be denied certain due process of rights. The chancellor on his own motion transferred the matter to the Pulaski County Circuit Court, Second Division. The circuit judge granted the injunction and this appeal followed.

Appellant originally contended that the circuit court erred in enjoining the board because appellee had not exhausted his administrative remedies and because the preliminary injunction violates the separation of powers and immunity provisions in the Arkansas Constitution. Appellant now concedes that a plaintiff proceeding in a § 1983 action does not have to exhaust his administrative remedies and that the case so holding, Felder v. Casey, 487 U.S. 131 (1988), also negates the argument that the injunction violates the separation of powers and immunity provisions in the Arkansas Constitution. The remaining issue before the court is whether the transcript reflects a clear threat of constitutional injury.

The right of a physician to practice his profession and be afforded due process in situations involving the suspension or revocation of his professional licenses is well established as a protected interest. Missouri ex rel. Hurwitz v. North, 271 U.S. 40 (1926). It is equally well established that in a suit brought pursuant to 42 U.S.C. § 1983, a court has not only the power but the duty to enjoin the threatened deprivation of rights guaranteed under the Constitution of the United States. See, e.g., Goldie’s Bookstore, Inc. v. Superior Court of the State of California, 739 F.2d 466, 472 (9th Cir. 1984); Henry v. Greenville Airport Comm’n., 284 F.2d 631 (4th Cir. 1960). Felder v. Casey, supra, grants to litigants their choice of bringing the § 1983 action in either federal court or state court.

Appellee, in an attempt to bring himself under the protection of the above cited cases, claims that there are three areas in which his due process rights are being violated. He contends that the board’s reservation of the right to enter default because the response was not timely filed, the refusal of the board to permit discovery depositions, and the inadequate notice given to him are due process violations. The record does not support a finding of a clear threat of constitutional injury.

With respect to appellee’s claim concerning the possibility that the board might enter default because of an untimely filing of the response, suffice it to say that the law is made up of one deadline after another. The failure to meet those deadlines often results in the imposition of severe penalties. A refusal to permit depositions is, likewise, not a due process violation. Refusal to permit evidentiary depositions would clearly be a due process violation. Kaiser Co. v. Industrial Accident Comm’n., 109 Cal. App. 2d 54, 240 P.2d 57 (1952).

No case has been cited that refusal to permit discovery depositions constitutes a due process violation, and none have been found. Discovery depositions are not permitted in criminal cases. Indeed, in federal criminal practice, the U.S. attorney is not even required to disclose the names of his witnesses prior to trial.

A much closer question is raised by the contention that the notice was inadequate. Unquestionably, notice must be adequate and reasonably calculated to inform the parties of administrative pleadings which may directly and adversely affect their legally protected interests and the issues in controversy. Such a notice must afford them an opportunity to prepare and present their positions or defend themselves. Branch v. Hempstead County Memorial Hospital, 539 F. Supp. 908 (W.D. Ark. 1982). In the case at bar, when we consider the transcript in its entirety, we must conclude that appellee had adequate notice. The exhibits to the notice and exchange of letters between the attorneys representing their respective clients demonstrate that appellee was aware of the nature of the testimony that would be presented against him.

For these reasons, the judgment should be reversed.

Holt, C.J., and Glaze, J., not participating. Russell Meeks, Special Justice, and Dudley, Purtle, and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. Dr. Leipzig’s complaint, seeking declaratory and injunctive relief, was first filed in the Pulaski County Chancery Court. The defendants, who are the Arkansas State Medical Board and its members, moved to dismiss on the ground that Dr. Leipzig had not exhausted his administrative remedies, that interference by a court would violate the separation of powers doctrine, and that the suit was precluded by Ark. Const, art. V, § 20, which provides that the state may not be made a defendant in its courts.

Dr. Leipzig responded to the dismissal motion by noting that his action was brought pursuant to 42 U.S.C. § 1983, and that the federal law would not permit the state to immunize its conduct alleged to have deprived him of due process of law. He contended that exhaustion of remedies was not required. He was correct. Felder v. Casey, 487 U.S. 131 (1988).

Without ruling on the motion to dismiss, the chancellor, on his own motion, entered an order transferring the case to the circuit court. The only reason given in the order was that “the issues presented . . . are legal issues more properly submitted to the Circuit Court.”

The case should not have been transferred. In his complaint, Dr. Leipzig sought a mandatory injunction requiring the board to return to him records of peer review proceedings. He also sought injunctive relief to compel the board to permit him to take depositions of the board’s expert witnesses prior to any hearing.

In Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920), Circuit Judge R.H. Dudley issued a writ of certiorari and a temporary stay of the proceedings of a road improvement district assessment program. The question presented on appeal was whether the circuit court had jurisdiction to issue an injunction. We noted that if a circuit court has jurisdiction of the underlying dispute, it may issue a temporary stay of proceedings incident to the exercise of its jurisdiction. It was found that the court lacked jurisdiction of the underlying claim raised by the statement of facts. We then turned to the question whether, absent the power to decide the underlying dispute, the circuit court had the power to issue an injunction. We wrote:

Injunctive relief is purely a matter of equitable jurisdiction, which, under the Constitution of the State, falls within the jurisdiction of separate chancery courts as now established. Article 7, section 15, of the Constitution provides that “until the General Assembly shall deem it expedient to establish courts of chancery the circuit courts shall have jurisdiction in matters of equity.” We are of the opinion that the power of the Legislature in establishing separate chancery courts therefore swept away the jurisdiction of the circuit court in matters exclusively cognizable in equity. [144 Ark. at 182-183, 222 S.W. at 63]

Had the complaint in this case sought only a temporary restraining order to stay proceedings of the board until the circuit court could hear the matter, there would be no problem. That was not the case, however, and it is probable that the circuit court would have no authority to step in and issue orders to the board as to how it should proceed to assure that fundamental rights were not deprived in the process of adjudicating the licensure of Dr. Leipzig. Dr. Leipzig alleged that the proceedings of the board were depriving him of due process of law. He pointed out to the chancellor that, although the circuit court is empowered under the Administrative Procedure Act to review actions of state agencies, the review is not a de novo review, and his reputation as a physician could be ruined if he were not able to assure due process in the proceedings against him. The power to review a decision by the board is very different from the power to step in and keep the board from acting arbitrarily, capriciously, or in a way that deprives one of constitutional rights.

Jurisdiction to prevent a state agency from acting ultra vires, in bad faith, or arbitrarily lies in the chancery court. Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984). See also Toan v. Falbo, 268 Ark. 337, 595 S.W.2d 936 (1980). Dr. Leipzig alleges the board has failed to give him sufficient notice of the charges against him in addition to depriving him of discovery to which due process entitles him.

In 1941 we reversed the granting of an injunction which would have required the board’s predecessor to have stated the charges against a doctor so as to give him stronger notice of the alleged offenses. Eclectic State Medical Board v. Beatty, 203 Ark. 294, 156 S.W.2d 246 (1941). We opined that the practice of medicine was a privilege rather than a right, and a doctor was not entitled to the niceties of process in an administrative proceeding against him. That is not the law today because the distinction between rights and privileges in this context has been completely rejected by the United States Supreme Court. See Board of Regents of State College v. Roth, 408 U.S. 564, 571 (1972).

The question of the content of the notice constitutionally required is not easily answered because the United States Supreme Court has adopted a flexible approach dependent on the character of the proceedings and the interests at stake. 1 C. Koch, Administrative Law and Practice, § 7.24 B (Supp. 1987). The point here is that it is a constitutionally recognized right subject to enforcement in a state court under 42 U.S.C. § 1983.

Although a party chooses to assert a right guaranteed by the United States Constitution by bringing an action pursuant to § 1983 in a state court, obviously the decisions of the Supreme Court must be applied. They must, however, be applied in the small procedural quagmire created by the retention, in this jurisdiction as in few others, of the distinction between law and equity courts. If the remedy sought pursuant to the federal law in an Arkansas court is a traditionally equitable remedy, it must be sought in the only court having jurisdiction to grant it.

While it may be time to change to courts of general jurisdiction by the adoption of a new judicial article, we should not attempt to accomplish that through judicial fiat. We apply the law and equity distinction vigorously sometimes. Savers Federal Savings & Loan Association v. First Federal Savings & Loan Assoc., 298 Ark. 472, 768 S.W.2d 536 (1989). Inconsistency will only perpetuate confusion and probably delay consideration of moving toward an amendment of the Arkansas Constitution creating courts of general jurisdiction.

I would reverse and remand for transfer to the chancery court.

Dudley, J., joins in this opinion.

Russ Meeks, Special Justice,

dissenting. The appellant Medical Board commenced this proceeding by issuing its Complaint and Notice of Hearing, the first sentence of which states that “The Arkansas State Medical Board has received information that you have been found guilty of acts which would justify the revocation or suspension of your license to practice medicine in the state of Arkansas.” The notice dated August 6, 1988, set forth a hearing date and advised appellee that the “Board will determine whether your license to practice medicine in the state of Arkansas should be revoked, suspended, or whether you should be subjected to any other disciplinary action.” These are the only available Board actions set forth in the Board’s own notice.

The Board scheduled a hearing for September 22. Appellee filed a Complaint in the Chancery Court of Pulaski County on September 16. Appellant’s pleadings raised jurisdictional issues. On September 21, the Chancery Court entered an Order transferring the action to Circuit Court upon its own motion.

The case was transferred to Circuit Court on September 21, 1988. On that same date, one day prior to the September 22 Medical Board hearing, the trial court entered an Order enjoining the appellant Medical Board “from holding any hearing regarding the Complaint and Notice of Hearing directed to Plaintiff or taking any further official action against the Plaintiff pursuant to the Complaint and Notice of Hearing previously issued by the Defendant Board, pending further order of this Court.” Appellant brings this appeal from the trial court’s Order.

The trial court committed no error in holding that there was threat of injury to the appellee’s constitutionally protected rights. The majority correctly states the law as follows:

The right of a physician to practice his profession and be afforded due process in situations involving the suspension or revocation of his professional license is well established as a protected interest. Missouri ex rel. Hurtwiz v. North, 271 U.S. 40 (1926). It is equally well established that in a suit brought pursuant to 42 U.S.C. § 1983, a Court has not only the power but the duty to enjoin the threatened deprivation of rights guaranteed under the Constitution of the United States. See, e.g., Goldie’s Bookstore, Inc. v. The Superior Court of the State of California, 739 F.2d 46, 47 (8th Cir. 1984) and Henry v. Greenville Airport Comm’n, 284 F.2d 631, 633 (4th Cir. 1960). Felder v. Casey, supra, grants to litigants their choice of bringing the § 1983 action in either Federal Court or State Court.

Additionally, the trial court was correct in his Order providing for a limited remedy that would prohibit the Appellant Board from taking “any further official action against the Plaintiff pursuant to the Complaint and Notice of Hearing previously issued by the Defendant Board, pending further order of this Court.” The Order provides for the possibility of further court review, yet it does not preclude the Board from amending the Notice (previously issued) so as to cause it to be more specific; or, from issuing a new notice in a more specific form.

For the above reasons, I would affirm.

I am authorized to state that Justice Purtle joins in the dissent.