author: John A. Fogleman, Chief Justice. Darrell Hickman, Justice,

text:
    Gregory Louis WATERS and Carl ADAMS v. STATE of Arkansas
    CR 80-115
    607 S.W. 2d 336
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980

      E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Defender, for appellants.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

As unusual procedure seems to have been followd. No written motion was filed. No motion was made until after a jury had been selected. At that time, the attorney for Adams moved to quash the panel because “the percentage of black people in the jury wheel is not sufficient.” The attorney for Waters joined in this motion. The trial judge, sitting on assignment, denied the motion, saying that he was unfamiliar with the jury selection process in this circuit court but felt sure that whatever substance there was in the motion could be reached. He found it necessary, at that time, to proceed with the trial. The jury returned a verdict of guilty on September 21, 1979.

On October 10, 1979, a hearing was commenced on the motions of Waters and Adams to quash the jury panel. This hearing continued on November 5 and 6. One of the jury commisioners testified that the regular circuit judge, who later disqualified himself, had instructed the jury commissioners, by which the jury panel was selected, to use their “discrimination” and select they thought should serve on a jury. Undoubtedly, the commisioners were actually told to use their discretion.

The Sheriff of Howard County testified that he knew nearly everyone in Howard County. He testified that he had examined the master list of 600 names drawn from the jury wheel selected by the jury commissioners and testified that there were definitely 23 blacks on the list and possibly three or four more. He said that of the 100 names on the panel for the trial of this case, four were black. The Sheriff estimated that black people constituted 20 percent of the total population of the county. This estimate finds support in the fact that the census report for 1970 shows that the percentage of black people in the Howard County population was 20.32. Of those over the age of 21 years, 17.21 percent were black and of those over 18, 17.73 percent were black. Even 27 black persons on the list of names placed in the jury wheel would constitute only 4.5 percent.

Each of the five jury commissioners, four of whom were white, selected names for the jury wheel from persons they knew. The Commissioners were told that each of them should select between 150 and 200 names for the jury wheel. The sole black commissioner submitted only 100 names. Three of the commissioners selected 90 to 100 percent of the names they listed from persons known to at least one of them personally, and the remainder at random. One of the commissioners said that she knew, or knew of, 200 or 300 black persons who would be qualified for jury service and thought she named one of them on her list of about 150. She listed only the names of persons she knew. They were taken from a part of the voter registration list which contained at least 300 names. One commissioner who lived in Nashville said that he selected people from the Nashville area but that he also selected a lot he did not know by picking them at random from outlying communities. He operated a manufacturing plant at Nashville at which 75 percent of the employees were black. He picked several of those workers. He could not remember seeing any names of persons from Dierks, Tollett or Nashville on the list furnished him for selection purposes. Another commissioner said that he selected five black persons for the master list, but most of the persons he selected were from Dierks, where he operated a hardware store and had lived all his life, and where there were only two black people. Another commissioner lived in a community around Umpire where there was not a single black person.

According to the sheriff, there are two communities in the county, Tollett and Longview, in which the black population exceeds 20 percent. He said that there were probably 300 voters in Tollett, where black people constitute 90 percent of the population. In the Longview community, the population is 50 percent black. On two panels of 100 names each, which had previously been drawn from the master list, there were ten black persons, but none were from either Tollett or Longview.

Before we can hold for appellants on this issue, we must answer two questions in the affirmative. First, did appellants make a prima facie showing of racial discrimination in the jury selection process? And, if so, was it rebutted by the state? We find that a prima facie case was made but not overcome.

A black defendant is not entitled to a jury containing members of his race or to demand a proportionate number of his race on a venire or jury roll from which the petit jury is drawn. Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965); Hernandez v. Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed 8966 (1954); Apodoca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972); Williams v. State, 254 Ark. 799, 496 S.W. 2d 395; Turner v. State, 258 Ark. 425, 527 S.W. 2d 580. It is the state’s purposeful or deliberate denial to Negroes, on account of race, of participation in the administration of justice by selection for jury service, that violates the equal protection clause. Swain v. Alabama, supra; Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977). A defendant in a criminal case is entitled to require that the state not deliberately or systematically deny to members of his race the right to participate, as jurors, in the administration of justice. Alexander v. Louisiana, 405 U.S. 625, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972); Apodaca v. Oregon, supra.

The primary question must be directed to the number, or percentage, of black persons on the original list placed in the jury wheel, since the drawing of names from the panel is random. The burden of showing facts which permit an inference or purposeful exclusion or limitation for jury service on account of race is on the defendant. Williams v. State, supra. Purposeful discrimination is not satisfactorily proven by showing that an identifiable group in a community is underrepresented by as much as 10 percent, because such a disparity, standing alone, reflects no studied attempt to include or exclude a specified number of that group. Swain v. Alabama, supra. Here there was a disparity of 15.82 percent (20.32-4.5). In considering whether appellants have made the required showing, comparison of the proportion of blacks in the total population to the proportion called to serve is the test. Castaneda v. Partida, supra.

In order to make a prima facie case, a substantial disparity or underrepresentation must be shown. Castaneda v. Partida, supra. We must determine, as best we can, what constitutes a substantial disparity. It seems that a disparity of 18 percent strongly points to the conclusion that discrimination is present. Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967). We have held that a 21.5 percent disparity is sufficient as a basis for establishing a prima facie case. Hall v. State, 259 Ark. 815, 537 S.W. 2d 155. We seem to have also found a disparity of 18.33 percent to be sufficient. Williams v. State, supra. On the other hand, we appear to have found that a disparity of 12.5 percent was not sufficient. Turner v. State, supra. The disparity shown here appears to us to afford an adequate basis for a finding that a prima facie case has been shown. See Sims v. Georgia, 389 U.S. 404, 88 S. Ct. 523, 19 L. Ed. 2d 634 (1967), where the disparity was 14.6 percent.

We are not unmindful of our decision in Murrah v. State, 253 Ark. 432, 486 S.W. 2d 897, which would lead to a contrary conclusion. The United States Court of Appeals for the Eighth Circuit disagreed with us. Murrah v. Arkansas, 532 F. 2d 105 (8th Cir., 1976). We do not concede that our decision in Murrah is not controlling here solely on the basis of the contrary conclusion by the Eighth Circuit. Decisions of the United States Supreme Court subsequent to our decision in Murrah do, however, lend support to the decision of the Eighth Circuit rather than to ours. See Castaneda v. Partida, supra. Our own cases of Williams v. State, supra, and Hall v. State, supra, seem to lead to a conclusion different from that we reached in Murrah.

A substantial disparity between the percentage of blacks in the population and the percentage in the jury wheel, standing alone, is not sufficient to make a prima facie case of discrimination. Thomas v. Texas, 212 U.S. 278, 29 S. Ct. 393, 53 L. Ed. 512 (1909); Akins v. Texas, 325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692 (1945). See also, United States v. Test, 550 F. 2d 577 (10 Cir., 1976). There must also have been either positive indicia of discrimination or proof that the selection procedure provided an opportunity for discrmination. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970); Hall v. State, supra; Turner v. State, supra; Murrah v. State, supra. Where the selection is committed to the discretion of jury commissioners, the use of their subjective standards in the exercise of that discretion may afford that opportunity. If the disparity originated at a point where the commissioners invoked their subjective judgment rather than objective criteria, then the prima facie case is complete. Turner v. Touche, supra. The “key man” system which relies upon the jury commisioners to select from the community at large is a highly subjective process which is subject to abuse. Castaneda v. Partida, supra. A system similar to the one used here has been characterized as a “key man” system. Murrah v. Arkansas, supra.

The evidence here is overwhelming that the commissioners did apply subjective standards. Only one commissioner said that he selected any names at random. He said that he did this by trying to select a certain number from each outlying community from a list, but he could not remember seeing names from Dierks, Tollett, or Nashvile, the place he lived and did business. One attributed the presence of only five black persons on his list to the fact that there were no black people in Dierks, where he lived and operated a store, and only two in that part of the county. Ninety percent of the list another commissioner submitted was selected from people he knew personally or by representation. He knew very few black people. He “guessed” that none of those on this list he did not know were black. Of the 10 percent he picked at random, he could not say which were black and which were not.

It was proper for the jury commisssioners to be instructed to select persons who have the courage of their convictions and are honest, trustworthy, fair-minded and impartial. None of the jury commissioners made any effort to ascertain any information about persons not personally known to them, or one of them. Where the statutory scheme vests wide discretion in the selection of persons for jury duty and, in exercising that discretion, selection of names for a jury list is limited to the commissioners’ own personal acquaintances, discrimination can arise from commissioners who know no Negroes, as well as from those who know, but eliminate, them. Smith v. Texas, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84 (1940). It is the constitutional duty of jury commissioners not to pursue a course of conduct in the administration of their offices which would operate to discriminate in the selection of potential jurors on racial grounds, and that duty may be violated by a failure to make an effort to ascertain the identity of members of the black race in the county who were qualified to serve as jurors. Hill v. Texas, 316 U.S. 400, 62 S. Ct. 1159, 86 L. Ed. 1559 (1942). In Hill, the United States Supreme Court said:

"“"‘"Discrimination can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case discrimination necessarily results where there are qualified negroes available for jury service. ***

Unfamiliarity with Negroes in the county and an inadequate arrangement for remedying this deficiency do not permit us to assume that further inquiry would not have led to the discovery of additional qualified persons of the black race in Howard County. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed 2d 567 (1970). The extent of the racial disparity in the percentage of names placed in the jury wheel coupled with the opportunity of the jury commissioners to discriminate by the application of subjective standards made a prima facie case of racial discrimination.

Upon establishment of a prima facie case, the state has the burden of rebutting the inference of intentional discrimination by showing that constitutionally permissible procedures were followed in the selection of the names to be placed in the jury wheel. Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977); Turner v. Fouche, supra; Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1974); Alexander v. Louisiana, 405 U.S. 625, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972); Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed 1074 (1935). This requires the state to show that the results were reached through racially neutral selection criteria and procedures. Alexander v. Louisiana, supra.

The state attempts to meet its burden of proof and to justify the actions of the jury commissioners on the ground that no overt, purposeful racial discrimination has been shown and that none of the commissioners displayed any racial animus. There is no instance of any overt act. “Purposeful discrimination,” however, need not be conscious, deliberate discrmination. Hernandez v. Texas, 347 U.S. 475, 74 S. Ct. 667, 98 L. Ed. 866 (1954).

The disavowal by the jury commissioners of discrimination, or of the intent to discriminate, was not sufficient to meet the burden of overcoming the prima facie case. Hernandez v. Texas, supra; Norris v. Alabama, supra; Smith v. Texas, supra. See also, Avery v. Georgia, 345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1953). There may be unconstitutional discrimination even though it is not consciously done. Hernandez v. Texas, supra. Even the testimony of the commissioners here that they neither excluded or included anyone because of race is not sufficient to overcome, a prima facie case. Turner v. Fouche, supra; Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed 599 (1967). See also, Reece v. Georgia, 350 U.S. 85, 76 S. Ct. 167, 100 L. Ed. 77, reh. den. 350 U.S. 943, 76 S. Ct. 297, 100 L. Ed 822 (1956); Alexander v. Louisiana, supra. It would not matter that at least one of the commissioners knew personally every qualified person in the county. Sims v. Georgia, 389 U.S. 404, 88 S. Ct. 523, 19 L. Ed. 2d 634 (1967).

The presumption that officials perform their duties properly is a factor which may be considered in determining whether there actually was discrimination. Turner v. State, supra. It will not, however, discharge the state’s burden. Jones v. Georgia, 389 U.S. 24, 88 S. Ct. 4, 19 L. Ed. 2d 25 (1967). The fact that the jury commission was 80 percent white and 20 percent black, in the same proportion as the county’s population, is also a circumstance which would tend to show that there was no intentional discrimination. Murrah v. State, 253 Ark. 432, 486 S.W. 2d 897. This fact would not itself be sufficient to rebut the prima facie showing. Castaneda v. Partida, supra. The testimony that the list submitted by the black commissioner contained only 100 names, while the other commissioners’ contained 150 or more, because all the others had completed their lists when he had selected only 100 of the 150 names he was directed to submit tends to negate this factor. It was completely negated by this commissioner’s testimony that he could find only eight names on the master list that he had put on his list and that he could not find other names of black persons from Shaw and Tollett he had listed. He could not remember having been furnished any list from which to choose names.

It is not enough that the commissioners honestly endeavored to discharge their duty, if they did, in fact, discriminate against black persons in the selection of the jury lists. Thomas v. Thomas, 212 U.S. 278, 29 S. Ct. 393, 53 L. Ed. 512 (1909). Since the opportunity for discrimination was present, we must be able to say that it was not resorted to before we can hold against appellants’ convictions. Alexander v. Louisiana, supra. We are unable to do this.

We do not mean to suggest that only a random system of selection will meet constitutional standards. An imperfect system is not equivalent to purposeful discrimination. Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965); Thomas v. Texas, supra. Our statutes governing the selection of names to be placed in the jury wheel do not appear to be unconstitutional on their face because they are capable of being carried out without any racial discrimination whatever. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Carter v. Greene County, 396 U.S. 320, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970).

Although the evidence of the guilt of appellants is rather strong, the convictions of black defendants must be reversed where the evidence shows racial discrimination in the jury selection process. Avery v. Georgia, supra.

Appellants contend that the giving of a revised version of AMCI 301 by which the jury was told that if it had a reasonable doubt as to a defendant’s guilt of all offenses, “you may find him not guilty” was reversible error. The revision occurred by substituting the word “may” for the word “must” in the instruction approved as AMCI 301. This was error but it does not constitute grounds for reversal. No objection was made, so the question arises for the first time on appeal. The error could have easily been corrected if it had been specifically pointed out. Appellant makes an argument that we should overlook the want of an objection to the instruction. This is an attempt to invoke a plain error rule, which we do not recognize. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980); Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (1980). This error is definitely not the exceptional type that calls for the court to correct as a serious one. See Wicks v. State, supra. The trial judge gave AMCI 110 by which the jury was informed that it must find a defendant guilty beyond a reasonable doubt, before returning a verdict of guilty and AMCI 109 on the presumption of innocence. When the instructions are considered as a whole, it is highly unlikely that the jury could have been misled. We have previously rejected the arguments advanced by appellants. Haynes v. State, 270 Ark. 685, 606 S.W. 2d 583 (1980). This error should not be repeated on retrial.

Appellant Adams also contends that the imposition of a fife sentence upon him by a jury exercising “standardless discretion” violated his right to due process of law and denied him “rights guaranteed by the Eighth and Fourteenth Amendments.” This issue is raised for the first time on appeal. We find no indication in the abstract of the record that Adams objected to the instructions given the jury by the trial court or to the verdict forms supplied to the jury. We find no request for any instruction affording guidelines to the jury for imposition of a life sentence. The suggestion that the absence of independent evidence to show that the 17-year-old victim suffered psychological injury by being forced to perform two separate acts of fellation upon Adams, as the jury found, would render the imposition of a life sentence improper, strikes us as being rather farfetched. In any event, the arguments advanced on this point are the same ones advanced and rejected by us in Shepherd v. State, 270 Ark. 457, 605 S.W. 2d 414 (1980) and Wicks v. State, supra. Upon the authority of those cases, we hold this argument to be without merit.

Appellants argue that there was insufficient evidence to support the jury verdicts against them. This argument is obviously an afterthought. Neither appellant ever moved for a directed verdict. Waters contends that the record is devoid of any evidence of any act of “forcible compulsion” by him to cause Kanniard to perform two separate acts of fellation on Waters. Forcible compulsion means physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person. All the acts charged against appellants and Leroy Miles, another occupant of the jail cell in the Howard county jail in which Kanniard, Waters and Adams were being held, occurred before daylight on March 4, 1979, after Adams had been moved from another cell. Kanniard weighed 120 pounds. Adams was 29 years of age, six feet five inches tall and weighed 250 pounds. According to Kanniard, he was first attacked by Miles, who was assisted by Waters in pulling Kanniard off a top bunk in the cell. Kanniard related that after Miles had said, “Let’s knock him out and take it,” Adams had pushed him into a shower, where Miles forcibly committed anal intercourse upon him, and then forced him to commit fellation upon Adams. Kanniard testified that Waters then said that it was his turn and that Adams then caused Kanniard to go to Waters’ bunk by threatening injury to him if he did not. Kanniard said that Waters made him perform an act of fellation.

Even if Waters did not make the threats and used no physical force himself, the element of forcible compulsion is present when the acts constituting it are done by an accomplice or accessory in the presence of the accused. See Watford v. State, 214 Ark. 423, 216 S.W. 2d 781; Ark. Stat. Ann. §§ 41-301 - 303 (Repl. 1977). The record discloses that an instruction on the criminal responsibility of an accomplice was given at the request of appellants or one of them. No objection to the giving of this instruction was made. Kanniard testified that Waters and Miles could have heard, and did hear, the threats made by Adams. He described the size of the jail cell and said that it would have been very difficult for Miles and Waters not to have heard threats made by Adams. A sketch of the cell was introduced. The jury heard the testimony and saw the sketch. There was substantial evidence from which it could have found forcible compulsion attributable to Waters. Miles, Waters, and Adams acted in concert, if the jury believed Kanniard’s testimony.

Appellant Waters makes much of the fact that Kanniard misidentified him as Miles, more than once during the course of the trial. Kanniard, however, was certain that both the defendants in the courtroom were in the jail cell with him. He said he was not sure he could “pick Gregory Waters out.” Later, he said that he could be mistaken in distinguishing between Miles and Waters in his identification, and that he could have “mixed them up.” On redirect examination, Kanniard was always positive in his identification of Adams. He said that Waters had stayed on his bunk in the cell nearly all the time that they were in that cell and that at the time Waters had some “fuzz” growing on his face. On redirect examination, he said that he was not absolutely sure whether the defendant in the courtroom beside Adams was Miles or Waters. When another person was brought into the courtroom, Kanniard recognized and positively identified him as Miles (who had previously entered a plea of guilty to the charges against him). Kanniard said that this was the first time he had seen Miles since the night of the alleged crimes against him. He then said that the two defendants in the courtoom were Waters and Adams. Resolution of the question of identification was a matter for the jury.

We find the evidence supporting the jury verdict to be substantial. We find no error prejudicial to Adams on any other ground.

The judgments are reversed and the cause remanded.

Mr. Justice Hickman and Mr Justice Stroud dissent.

Darrell Hickman, Justice,

dissenting. There are two approved methods of selecting a jury panel in Arkansas, both deemed constitutional. One is a purely random method where every person is selected by numbers. The other, the one used in this case, is a more selective method where the jury commissioners are advised to use some judgment in selecting people who will serve as jurors:

The majority concedes that there was no evidence of any purposeful discrimination in this case. There is not a hint in the record that the judge or any of the commissioners used or intended to use race as a criterion for selecting or excluding anyone. The only evidence that can be the basis of the majority decision is statistics. The commissioners agreed that the judge told them to select jurors who had the courage of their convictions and who were honest, trustworthy, fair-minded, and impartial. One commissioner was black. He said that he did not use race as a criterion in his selection. He said the judge told them to select good jurors, which to him meant people who would be fair whether black or white.

The other jury commissioners testified in a like manner and it would be fair to conclude from their testimony that it never occurred to any of them that they were supposed to select or exclude anybody because of race. Without any facts or evidence to support its conclusion except some statistics, the majority concludes that the system used in this case amounted to purposeful discrimination.

What did the appellants show? First, they simply made the assertion, “The percentage of black people is not sufficient.” The United States Supreme Court said in Swain v. Alabama, 380 U.S. 202 (1964): “[P]urposeful discrimination may not be assumed or merely asserted. ... It must be proven.” The sheriff testified that he thought the percentage of black people in Howard County was about 20 percent. On appeal, the 1970 Census figures for that county are offered as evidence that the county was composed of 20.32 percent black people. The trial judge did not even have this evidence when he made his ruling. We must find this ruling to be clearly erroneous in order to overturn it.

Second, no evidence at all was offered of past practices in Howard County which might indicate a pattern of invidious discrimination. No evidence was offered of the percentage of black people registered to vote or even the percentage of black people eligible to vote. There was not a hint that the commissioners resorted to racial discrimination in selecting prospective jurors. In Patton v. Mississippi, 332 U.S. 463 (1947), it was shown that no Negro had been called for jury service for thirty years.

Arkansas voter registration records do not reflect race so it cannot be argued that those records afforded an opportunity to exclude black people. In Alexander v. Louisiana, 405 U.S. 625 (1971), the records did reflect the race of those being selected. Certainly the names of black people could give no clue of race. In Castaneda v. Partida, 430 U.S. 482 (1977), the court found that the names of Mexican-Americans did reflect their race.

What we have is a bare assertion of racial discrimination, one set of statistics, and merely an opportunity to discriminate. In the Castaneda case, on which the majority relies, the court pointed out that the State put on virtually no proof to rebut a comprehensive showing of a ten-year pattern of discrimination. The Court remarked:

Inexplicably the State introduced practically no evidence. The testimony of the State District Judge dealt principally with the selection of the jury commissioners and the instruction given to them. The commissioners themselves were not called to testify. [Emphasis added.]

The commissioners did testify in this case and, unless their testimony is totally disregarded or found to be unworthy of belief, their testimony cannot be ignored. The law requires proof of a racially discriminatory intent before the Equal Protection Clause is violated. Swain v. Alabama, supra; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977). There is no such proof in this case.

The majority decision is legally inexplicable to me. I can only understand it because it concerns a sensitive issue, but that is no reason to relax the standards of the law. Racism is not an evil that can be overcome with legal gymnastics. It is best dealt with by confrontation and a determination that equality will have only one meaning.

I would suggest the courts have been wrong to approve the jury selection method used in this case. The majority decision is evidence of just how restrictive the law can be. For the selection to meet the approval of the courts, the jury commissioners are placed in an untenable situation. They must not discriminate and yet the panel they choose must contain a certain percentage of people of a particular race. That is a form of discrimination. The commissioners’ intentions, however good and however innocent, will be for naught unless the panel fits a pattern which the courts have ill-defined. It is basically unfair to ask commissioners to be so devious.

It would be better to abandon altogether the idea that such a system will work. If this idea were abandoned, a person’s integrity would not be questioned without evidence; criminal defendants would not have to be concerned about the composition of the jury; the courts would not have to constantly deal with this difficult question; and, more importantly, there would be one less problem that would be a divisive instrument among people.

I would suggest that no Arkansas jury should be chosen again as this one was, not because I think it was an unconstitutional jury, since I feel it was constitutional, but because we can ill afford this problem in our criminal justice system.

Stroud, J., joins in this dissent.

       The total population of Howard County as of 1970 was 11,412 with 2,-319 blacks. In the over 18 category, the voting population, 1,397 were black out of a 7,877 total.


source: Caselaw Access Project

license: Public Domain

text:
    Edgar DUPREE, Jr. v. STATE of Arkansas
    CR 80-132
    607 S.W. 2d 356
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980

      Arnold, Hamilton & Street man, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Appellant was found guilty of manslaughter and sentenced to ten years imprisonment on October 12, 1979. He had been tried on a charge of first degree murder of his brother-in-law, George Parker, Jr., arising from an incident on May 7, 1977, but was found guilty of the lesser offense. The charge was filed on May 10, 1977. This appeal is based upon the trial court’s denial of several pretrial motions. They were: (1) a motion to dismiss the charge on account of the state’s failure to bring him to trial within three terms of court; (2) a motion to prohibit witnesses whose names were belatedly furnished to defense counsel from testifying; (3) a demurrer and motion to dismiss the charge on account of a defect in the name of the person charged in the information; and (4) a motion to quash the information. We find reversible error in regard to the second motion.

On September 11, 1978, appellant moved that the state be required to file a “bill of particulars” including the names of every person known to the state who had any information, the addresses of such persons, the substance of their expected testimony and a statement whether the state intended to use them in the trial of the case. At a pretrial hearing on September 28, 1979, after the case had been set for trial on October 12, 1979, the court ordered the state to furnish counsel for defendant a list of witnesses which it proposed to use along with their addresses and an itemization of any other evidence in the state’s possession by October 2, 1979. On October 2, 1979, a deputy prosecuting attorney addressed a letter to appellant’s attorney advising him that the state intended to call Wallace Champion, Leroy McCowan, Robert Lee Pen and Evelyn Dupree. In spite of the fact that the charges had been pending for more than two years, the letter included the following: “At the present time, this is a complete list of the witnesses and evidence available to the State. If anything further turns up, you shall be advised promptly.” Yet, on October 10, 1979, subpoenas were issued on behalf of the state for Shela [Sheila] Wood, Jacqueline [Jacqulin] Rodgers, Bear Webb and Ernest Thomas [Thompson] and on October 11, 1979, for Myena [Murna] Bryan. On October 12, appellant’s attorney requested that the court deny the prosecution the right to call Sheila Wood, Jacqulin Rodgers, Ernest Thompson, Ollie Mae Parker and Murna Bryan as witnesses. Appellant’s attorney stated that he was not made aware of the evidence these witnesses would introduce, that the names of Wood, Rodgers, and Thompson had not been furnished him until approximately 2:15 p.m. on October 10, and that on October 11 at 4:00 p.m., he was given the names of Parker and Bryan. The attorney stated that he had not had an opportunity to talk with any of these witnesses and had no idea what their testimony would be or the purpose of their being called. He said that on the preceding day he had called Sheila Wood and Ernest Thompson by telephone and had made appointments for each of them to come to his office, but both failed to appear. He said that he had tried to reach Jacqulin Rodgers by telephone, but had found that she was working and could not be reached. The prosecuting attorney said that he had located these witnesses himself during the preceding two days and that, if a request had been made he would have been glad to have told appellant’s attorney the “substance of their involvement in the matter.” He said that Murna Bryan was a nurse who had been located in an effort to prove the corpus delecti after it was discovered that the attending physician did not have a good recollection of the cause of the death of George Parker, Jr. After the prosecuting attorney had been sworn and had testified that he had advised the trial judge on September 28 that he had furnished the contents of his investigative file to defense counsel “as of June 15,” that he had given Mr. Street-man a list of all witnesses “we had as of October 2,” that he had furnished appellant’s attorney with a list of all witnesses as “I have received them,” and that he had made no attempt to withhold anything from appellant’s attorney, the trial judge overruled appellant’s motion. Appellant’s attorney was permitted thereafter to cross-examine the deputy prosecuting attorney, apparently for the record. This witness then admitted that he did not know of any reason why the state had not been aware that Ollie Mae Parker would be called as a witness and why, with reasonable diligence, the prosecuting attorney, who had filed the charge and his deputy, or the present incumbent of these offices, could not have learned the names of all these witnesses and furnished them to appellant’s attorney at an earlier date. The trial judge then noted that appellant had objected to each of these persons being permitted to testify, thus obviating the requirement that appellant register an objection when each of them was called.

There was really no prejudice to appellant resulting from the testimony of Murna Bryan, Ernest Thompson or Sheila Wood. The witness Bryan simply testified as to the condition of George Parker, Jr., when he was brought into the emergency room at the hospital in Crossett on May 7, 1977. She described the wounds and the blood she saw on the clothing and the body. Dupree testified and admitted that he had been armed with a knife when he and Parker had an encounter and that he had used the knife in self-defense, or to keep Parker off him. Dupree said that he did not think that Parker had ever seen the knife, but that after Parker was cut, he had bled, looked at himself and at Dupree and had run. There does not seem to have been any serious question about the cause of death, so permitting this witness to testify under the circumstances was not sufficiently prejudicial to justify a reversal for abuse of the trial court’s discretion.

Sheila Wood testified only in rebuttal. She controverted the testimony of Dupree that the physical encounter between the two was commenced by Parker’s pushing him and that, before Parker was cut, the two had fallen to the ground. Her testimony was cumulative to that of Evelyn Dupree and Jacqulin Rodgers. Thus, it was not sufficiently prejudicial to constitute reversible error. The only testimony by Thompson related to his seeing Parker run away from the scene of the encounter between Dupree and Parker, and to Parker’s condition when Thompson went to the place toward which he had seen Parker running and found Parker lying on the ground.

Ollie Mae Parker was the mother of George Parker, Jr., and Evelyn Dupree. She testified that, on the evening of the encounter between her son and son-in-law, Evelyn had come running back to the Parker house and was upset. She said that she went outside and saw that appellant had driven her daughter’s car and positioned it so she and her daughter could not use it to go see about George Parker, Jr., that appellant had stated that he had cut that “so-and-so” and that he was going to wind up killing all of the Parkers. She also told of the condition in which she later found her son. Appellant himself testified that, after his encounter with Parker, he had gotten in the car and had driven home, which was next door to the Parker house, where he met Mrs. Ollie Mae Parker and her family, who were on their way to see Parker, but denied having blocked the driveway. Dupree could not well have been surprised to learn that Mrs. Parker would be a witness. Investigation of the case should have revealed the nature of the testimony she might be expected to give. A defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation.

On the other hand, the record does not disclose any means that appellant had of anticipating that Jacqulin Rodgers would testify or what her testimony might be. The testimony abstracted does not reveal that appellant knew that Jacqulin Rodgers, Sheila Wood, and a man named Arthur had been in an automobile from which George Parker, Jr., had alighted before the encounter between him and appellant on the grounds of a place known as Willie Penn’s Bar-b-que only a short distance from the dwelling house of the elder Parkers. Her testimony was as damaging to appellant and his defense as that of any other witness. She testified that she had never been contacted by anyone about the case until she was served with a subpoena the day before the trial.

The state seeks to excuse its failure to comply with the court’s order on appellant’s motion for discovery by stating that the deputy prosecuting attorney who participated in the trial had only located the witnesses, to which appellant objected, two days before the trial, that he had learned that certain of the witnesses whose names he had furnished were unavailable, and thereafter had sought replacement witnesses. The state called only one witness on its original list. Even though the case had been pending over two years, the state’s attorneys, only ten days before trial, stated that certain witnesses would be called and then discovered they were not available. Even though there may have been no lack of good faith, diligence on the part of the prosecuting attorney would have prevented appellant from being misled as to the witnesses with whom he would be confronted. The admission of a lack of prosecutorial diligence in the matter of witnesses was certainly appropriate. Even so, only the mechanics of compliance rest upon the prosecuting attorney. The discovery rules require that he make disclosure upon timely request. His obligations under Rule 17, Arkansas Rules of Criminal Procedure, extend to material and information within the knowledge, possession and control of members of his staff arid of any others who have participated in the investigation or evaluation of the case and who regularly report, or with .reference to the particular case, have reported, to his office. It would be difficult to believe that there had been no investigation that revealed that Jacqulin Rodgers was a potential witness. In Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415, we pointed out that Rule 17.1 imposes a duty upon the state to disclose all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use of it.

It is quite possible that the trial court might have rendered the state’s failure to earlier furnish the names of the witnesses it used harmless by granting appellant a continuance or by recessing the trial until appellant’s attorney could have an adequate interview with the witnesses. See Rule 19.7, Arkansas Rules of Criminal Procedure, Ark. Stat. Ann. vol. 4A (Repl. 1977); Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888. But the court never gave any indication that this relief was available to appellant. The court’s overruling of appellant’s motion before his attorney could cross-examine the deputy prosecuting attorney was certainly not indicative of the availability of such relief.

Appellant argues that the trial court erred in denying his motion to dismiss for failure to try him within three terms of court as required by Rule 28. His original motion for dismissal for failure to bring him to trial within three terms of court was based solely upon the provisions of Rule 28. Arkansas Rules of Criminal Procedure, supra. The critical dates disclosed by the record and by statute are:

March 21, 1977 Term of court began
May 5, 1977 Appellant arrested
May 10, 1977 Information filed
June 13, 1977 Appellant admitted to bail
October 17, 1977 Term of court began
January 27, 1978 Entry on court’s docket: Defendant ill in Trumann with flu. Pass for plea. Set for trial on June 6, 1978
March 20, 1978 Term of court began
June 6, 1978 Date case set for trial
October 1978 Employment of Bruce Switzer as appellant’s attorney terminated
October 16, 1978 Term of court began
March 19, 1979 Term of court began
June 28, 1979 Appellant arraigned
September 19, 1979 Motion to dismiss filed
September 28, 1979 Motion to dismiss denied, without either party offering evidence
October 12, 1979 Appellant’s trial held and motion to dismiss again denied
October 15, 1979 Term of court began

The term of court during which appellant was arrested and charged is excluded. State v. Messer, 269 Ark. 431, 601 S.W. 2d 857. It is clear, however, that three terms of court passed before appellant was brought to trial unless there were excluded periods under Rule 28.3. The period of delay resulting from a continuance granted at the request of the defendant or his counsel is such an excluded period. Rule 28.3 (c), Arkansas Rules of Criminal Procedure, supra. The burden was on the state to show that a period should be excluded. The trial judge denied the motion when no evidence was presented on the basis of the docket entry dated January 27, 1978. It was proper for the judge to act upon the basis of the docket entry. The court’s docket is an appropriate record of continuances granted. See Ark. Stat. Ann. § 22-117 (Repl. 1962). A court’s records have a large degree of sanctity attached to them and are not to be lightly overturned. Williams v. Alexander, 140 Ark. 442, 215 S.W. 721. There was nothing before the court to overturn the record made.

If that record was correct, trial was imminent at the time, or there would have been no occasion for a motion for continuance by the defendant. The definite trial date set when the continuance was granted was well into a new term of court. After the continuance was granted the circuit judge was required to hold terms of court in Bradley County on the first Monday in February, 1978; in Drew County on the third Monday in February, 1978; in Cleveland County on the first Monday in March, 1978; and in Dallas County on the third Monday in June, 1978. The continuance resulted in a setting in the March, 1978, term of the Ashley Circuit Court and before the circuit judge had to commence a term of court in Dallas County.

We have indicated that a delay by reason of a continuance should not exclude a full term of court, if that can be avoided. Matthews v. State, 268 Ark. 484, 598 S.W. 2d 58. It is difficult to see how the exclusion of the October 1977 term might have been avoided. Thus, if the continuance was granted on motion of the defendant, he was brought to trial within three terms.

Appellant renewed his motion to dismiss on October 12, 1979- In this motion he reasserted his contention with reference to Rule 28 and added that he was materially prejudiced by the delay because several key witnesses for the defense were not available to testify and that their whereabouts were unknown to him. Appellant proffered his testimony as well as that of Bruce D. Switzer, appellant’s former counsel, to controvert the docket entry. The trial judge declined to hear the testimony because it was not offered on September 28 and because the new motion had not been filed more than 10 days prior to trial. After the testimony was proffered, the trial judge stated that he denied the motion because of the docket entry, which was in the handwriting of the judge who then presided over the court, because the testimony should have been tendered on the date of the first hearing and because the motion was filed too late.

We are not aware of any requirement that a motion to dismiss for denial of a speedy trial be made more than ten days before the date of trial. A failure to make the motion before trial would have constituted a waiver. See Rule 30.2, Arkansas Rules of Criminal Procedure, supra. The abstract of the record does not disclose that an omnibus hearing had been held in this case. Nevertheless, we cannot say that there was error in the denial of the motion. The state had met its burden by the docket entry. Appellant sought to overcome its effect by its own testimony and that of Switzer. The docket entry was not conclusive, and was subject to rebuttal by parol evidence. The trial judge would not be justified in his reliance upon it if had been refuted by unequivocal testimony, which was unrebutted. Front v. State, 256 Ark. 723, 510 S.W. 2d 291.

We cannot say that the docket entry should have been overturned upon the proffered testimony. Appellant testified that Switzer had represented him until approximately October, 1978. Appellant testified unequivocally that he did not ask Switzer to postpone a trial date because appellant had been sick, or for any other reason. He said that he did not know where Trumann, Arkansas is and did not think he had ever been there. He said that he was living in Crossett on January 27, 1978. He admitted that he had had the flu but said that he did not report it to Switzer. Switzer testified that he did not recall having asked the court to continue the case in January, 1978, and that his file did not reflect that he had. He said that he did not recall the appellant’s having been ill with the flu nor did he recall having any information about the appellant’s having had the flu. Since it is clear that appellant had had the flu and the attorney only denied any recollection of having requested a continuance or any disclosure of such a request in his file, we cannot say that the record made on the docket should have been overturned.

We find no merit in appellant’s contention that the court erred in denying his demurrer and motion to quash the information because it named Edgar Dupree and he was actually Edgar Dupree, Jr. That motion was filed at 1:00 p.m. on October 12, 1979, after the jury had been impaneled and sworn to try the case. Appellant testified that he had “turned himself in when it happened.” Appellant admitted that he had been known as Edgar Dupree. Appellant’s father, who was living, was also named Edgar Dupree.

We need not consider the denial of appellant’s motion to quash the jury panel. It is highly unlikely that the particular situation of which appellant complained would arise again.

The judgment is reversed and the cause remanded.

Mr. Justice Hickman and Mr. Justice Mays dissent as to the remand.

Darrell Hickman, Justice,

concurring in part, dissenting part. I agree with the majority decision in all respects but one. I would dismiss the charges because of the lack of a speedy trial.

We have said many times that Rules of Crim. Proc., Rule 28, sets forth the outer limits of delay allowed in bringing a criminal defendant to trial. At the same time we have said we are bound by Barker v. Wingo, 407 U.S. 514 (1972) which defines the law regarding a speedy trial. It depends upon the length of delay, the reason for delay, the claim for a speedy trial, and prejudices that are caused by the absence of a speedy trial. We have never, to my knowledge, dismissed a case short of the term limits set forth in Rule 28 but I submit that this is a case for just that treatment. It fits all the criteria set forth in Barker v. Wingo, id.

There is no doubt that three terms of court had elapsed. The State offered no reason for the delay. A docket entry of dubious value is the basis of the majority’s decision. Even if it is given credibility and an extra six months is granted to the State, the trial was not held soon enough.

I do not know why the State delayed this case. It may have had a weak case, docket problems, administrative problems, or whatever, but there was no justification given. That can only mean that the charges ought to be dismissed. In Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980), this court dismissed charges that had been pending less than seven months. The State should not be able to sit idly by expecting that their inaction will be approved.

Mays, J., joints in this dissent.


author: George Rose Smith, Justice. Darrell Hickman, Justice,

text:
    OMNI FARMS, INC. v. ARKANSAS POWER & LIGHT COMPANY
    80-137
    607 S.W. 2d 363
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980
    [Rehearing denied December 8, 1980.]

      Thurman & Capps, Ltd., for appellant.

      House, Holmes & Jewell, for appellee.
   George Rose Smith, Justice.

In August, 1978, the Public Service Commission authorized the appellee, Arkansas Power & Light Company, to construct a generating plant in Independence county and about 170 miles of connecting high-voltage transmission lines to points in Pulaski and Lonoke counties. Pursuant to that authorization A.P. & L. brought this condemnation suit 18 months later to acquire a 180-foot right of way across a cattle ranch owned by the appellant, Omni Farms, Inc., in Lonoke county. In its answer Omni asked that the action be dismissed because, first, A.P. & L. had allegedly made no effort to negotiate a settlement with Omni before filing suit, and second, “the laws relied upon by Plaintiff are unconstitutional on due process grounds.”

After a preliminary hearing the trial court rejected both defenses, approved the condemnation, and ordered a $15,000 deposit as the estimated value of the 17.14 acres being taken. The court, however, to avoid a possibility of irreparable injury to Omni, stayed the judgment pending this appeal. The case has not yet been tried on the main issue of the amount of compensation to be awarded. Our jurisdiction rests on Rule 29 (1) (c).

At the outset, A.P. & L. asks that the appeal be dismissed for want of an appealable order. The record indicates that the proposed transmission lines will be strung on tall metal towers, embedded in concrete. At the oral argument counsel for A.P. & L. conceded that if the construction is allowed to proceed, it will be impossible in the event of a reversal for Omni’s land to be restored to its previous condition. We conclude that this is one of the comparatively rare instances, foreseen by some of our earlier opinions, in which an order must be regarded as appealable because otherwise the order would divest a substantial right in such a way as to put it beyond the power of the court to place the party in its former condition. See Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1967); Batesville v. Ball, 100 Ark. 496, 140 S.W. 712, Ann. Cas. 1913C, 1317 (1911).

On the merits, Omni first argues that the controlling statute mandatorily requires the condemnor to negotiate with regard to the purchase price before bringing suit to condemn and that a failure to negotiate is a jurisdictional defect so fundamental as to require dismissal of the action.

We do not agree. Unquestionably the legislature is free to require preliminary negotiation as a condition precedent to the exercise of the power of eminent domain. Courts elsewhere have frequently construed as mandatory various statutes contemplating such preliminary negotiations and have sometimes indicated that a condemnation order entered without prior negotiation is absolutely void for want of jurisdiction. The cases have been extensively collected in Nichols’ Eminent Domain, § 24.62 (rev. 3rd ed., 1976), and need not be reviewed here.

The language of the particular statute, however, must be considered. Our General Assembly has said, for example, that in certain condemnation actions brought by state colleges the board of trustees must first “exercise every reasonable effort to obtain the property in question at a reasonable price by negotiation, and the Trial Court shall so find.” Ark. Stat. Ann. § 80-3318 (Repl. 1980). If language such as that were now before us, Omni’s argument would have greater force.

The statute controlling this case is vastly different from that just quoted. It provides that whenever a utility company has obtained from the Public Service Commission the required certificate of environmental compatibility and public need, and the utility “is unable to reach agreement with the owner of land ... to construct, operate, maintain and obtain reasonable access to the major utility facility, it may acquire the same by the exercise of the power of eminent domain.” Ark. Stat. Ann. § 73-276.15 (Repl. 1979). It was evidently the intention of the legislature to require preliminary negotiation, which has often proved to be immensely beneficial to both parties when a condemnation suit is being considered. We accordingly hold, in harmony with the great weight of authority, that the statute now in question imposes a mandatory duty on the utility company to negotiate.

It does not follow, however, that the duty is necessarily of such indispensable importance as to be jurisdictional. By analogy, many steps required by the election laws are mandatory, but noncompliance does not destroy the validity of the election unless the statute expressly so declares or unless the particular provision affects an essential element of the election, as by obstructing the free and intelligent casting of the vote. Orr v. Carpenter, 222 Ark. 716, 262 S.W. 2d 280 (1953).

The statute now in question does not expressly declare preliminary negotiations to be jurisdictional, nor in our opinion does it do so by implication. The opportunity to negotiate does not end with the filing of the suit, especially as several months may pass before the case is set for trial. Moreover, if negotiation were a jurisdictional requirement, it would follow that a condemnation judgment entered after a long and hotly contested trial would be void if it were later shown that the condemnor failed to negotiate. The wording of the statute would have to be decidedly more imperative than it is before we could regard negotiation as jurisdictional.

The trial court’s finding that A.P. & L.’s negotiation procedure met the requirements of the law is not clearly erroneous. A.P. & L.’s appraiser testified that the value of the 17.14 acres being taken for a right of way was $875 an acre, making a total of about $15,000. Another witness for A.P. & L. testified that he had authorized settlement offers through the company’s attorneys; the trial court took notice that the negotiations had not been successful. William Fay Wright, Omni’s president, testified on cross examination that on the morning of the hearing Omni’s attorney had informed Wright of an offer of $15,000. “When I heard $15,000, it was so ridiculous he [the attorney] wouldn’t bring anything like that to me. It would only tend to upset me.” He said the offer would not be accepted under any circumstances. Negotiations need nto be carried farther than to demonstrate the impossibility of agreement, which may be shown by the landowner’s willingness to sell only at a price which the condemnor deems excessive. Kerr v. Raney, 305 F. Supp. 1152 (W.D. Ark. 1969); see also Nichols, supra. That appears to have been the situation in the case at bar; so no error is shown.

Omni’s alternative ground for dismissal is its assertion that the governing statute denies due process of law. The statute is Act 164 of 1973, amended by Act 866 of 1977. Ark. Stat. Ann. §§ 73-276.1 through -276.18. Omni’s argument is really directed not so much to the terms of the statute as to Omni’s failure to receive sufficient notice of the Public Service Commission proceeding by which A.P. & L. was authorized to cross Omni’s land. Consequently we need to discuss the statute and the proof only as they relate to the matter of notice. Upon this branch of the csae it must be kept in mind that Omni is attacking the procedure as a denial of due process and therefore has the burden of proving its invalidity. Rebsamen Motor Company v. Phillips, 226 Ark. 146, 289 S.W. 2d 170, 57 A.L.R. 2d 1256 (1956); State ex rel. Kimberlite Diamond Mining & Washing Co. v. Hodges, 114 Ark. 155, 169 S.W. 942, L.R.A. 1916F, 122 (1914).

The statute requires the Commission to make various findings as to the probable environmental impact of the proposed facility. § 73-176.8. With respect to such matters of general public interest the statute provides for actual notice to specified governmental agencies and for notice by publication to persons residing in affected municipalities and counties. § 73-276.4. Omni does not appear to be concerned about these environmental matters, but even if it were concerned it has not met its burden of proving any want of notice in this aspect of the case.

What Omni does seem to be concerned about, as nearly as we can tell from its meager proof, is the particular location of the right of way that will cross its land. On this point Wright mentioned an airport that Omni has built on its land, but he did not say just how the proposed line might interfere with the airport (except possibly by a reference to a plastic overlay which has not been brought to our attention). In fact, the construction of the airport, which took only about two months, was not even begun until some three months after A.P. & L. had notified Omni in September, 1979, that in the very near future surveyors would be on the land to make a final location of the transmission line route on the ground.

As we understand Omni’s argument, it is contended that Omni did not receive adequate notice about just where the transmission line was going to cross its property. Omni concedes that it is not entitled to procedural due process concerning the necessity for the taking unless the legislature has provided a forum in which the landowner may contest that necessity. Bragg v. Weaver, 251 U.S. 57 (1919). Omni argues that the legislature did designate the Public Service Commission as such a forum, but Omni did not receive adequate notice of the proceedings to be conducted by the Commission. Specifically, Omni insists that although it received letters from A.P. &' L. informing it of the pendency of the proceedings, those letters stated that Omni would be notified of the time and place of a hearing to be scheduled by the Commission in connection with A.P. & L.’s application as soon as the Commission advised A.P. & L. of the schedule. That follow-up information was not received by Omni.

We do not find this argument persuasive. The Commission’s primary concern was with environmental matters, which were presumably to be considered at the hearing to which the letters referred. Omni has made no effort to show that the hearing mentioned in the letters would have touched upon any issue with which Omni was concerned.

Of course, the Commission had to fix the approximate location of the transmission lines to assess their environmental impact. That was eventually done, and the letters sent by A.P. & L. to Omni enclosed aerial photographs of Omni’s land, showing the proposed location of the lines. Even when the Commission finally fixed the location of the lines in its order granting the application, the order expressly allowed some variation, up to 300 feet and possibly more, in the exact location of the right of way to accommodate the landowner.

We emphasize the fact that the two letters, one received by Omni in February, 1978, and the other in January, 1979, contained much substantial information in addition to the aerial photographs. Omni was informed of the nature of the proceeding before the Public Service Commission. Omni was told that informtaion about its right to intervene in the proceeding could be obtained from the Secretary of the Commission, whose name, address, and telephone number were given. The writer of the letters offered to discuss any questions about the proposed facility with Omni, giving his name and address, with a long distance telephone number that Omni could use free of charge.

Neighbors of Omni did call A.P. & L. in response to similar letters. The Commission’s final order details modifications in line locations made in response to interventions by other landowners. The letters were certainly sufficient to put a reasonably prudent person on inquiry, which means that Omni is charged with notice of all facts such an inquiry would have revealed. Kellogg-Fontaine Lbr. Co. v. Cronic, 219 Ark. 170, 240 S.W. 2d 872 (1951). Unquestionably Wright must be taken to have known that the Commission would not hold a hearing upon Omni’s particular problems with respect to its particular land unless Omni took the initiative in bringing those problems to the Commission’s attention. But no move in that direction was made. Omni did file a petition for rehearing with the Commission, but it is not shown what it contained nor whether Omni might have had a remedy by appealing from the denial of the petition.

Omni’s due process argument boils down to this. It complains that A.P. & L. failed to give it the promised notice of a Commission hearing, the nature of which Omni has not shown. Omni did receive actual notice, once in February, 1978, and again in January, 1979, that the line was to cross its ranch. Details and sources of information were supplied, but Omni and Wright apparently paid little if any attention to the matter until receiving notice that A.P. & L.’s surveyors would be on the ground soon after September, 1979, more than 18 months after the February letter. We still do not know exactly what Omni’s objections to the proposed line may be, because the record is practically silent on that pivotal point. We cannot say that Omni has proved a denial of due process of law by any lack of notice of the impending condemnation.

Affirmed.

Fogleman, C. J., and Hickman, J., concur.

Darrell Hickman, Justice,

concurring. I agree with the majority’s disposition of this case, but for different reasons.

In my judgment the Arkansas General Assembly delegated to the Public Service Commission the authority to find that a necessity existed for the power line. The General Assembly also delegated the power to approve the location of the line. There are notice requirements in that law as the majority has indicated. I cannot say whether the Public Service Commission directed Arkansas Power and Light to notify the landowners of the hearing since that is not in the record, but it would appear that that is the case. In any event, Arkansas Power and Light did notify the landowners that there would be a hearing and apparently told this particular landowner that it would be notified of the time and place of the hearing. I cannot say on this record whether Arkansas Power and Light did that. To do so would, in my judgment, mean that I would have to find that the trial court was clearly erroneous.

For these reasons, I concur in the decision the majority has reached.

Fogleman, C. J., joins in this concurrence.


author: George Rose Smith, Justice.

text:
    Henry BOLAR et al v. Wesley M. CAVANESS, County Clerk et al
    80-235
    607 S.W. 2d 367
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980

      Robert Wellenberger, for appellant Henry Bolar.

      Griffin. Rainwater & Draper, for appellant R. D. Jones, Jr.

      Williamson, Ball & Bird, by: Samuel N. Bird, and James A. Ross, Jr., Deputy Pros. Atty., for appellees.
   George Rose Smith, Justice.

On August 29, 1980, separate petitions were filed in the office of the county clerk of Drew county, seeking a wet-dry election in two townships in the county. On September 8 the county clerk certified the petitions to be sufficient. Not until October 3 did the two appellants file separate actions in the circuit court challenging the county clerk’s certifications on various grounds. The circuit court, after consolidating the cases, sustained motions to dismiss on the ground that the actions should have been filed within 15 days after the clerk’s certifications. Act 4 of 1935, § 9, compiled as Ark. Stat. Ann. § 2-310 (Repl. 1976).

The appeal comes to this court under Rule 29(l)(g). We announced our affirmance on October 31, before the General Election, and are delivering this opinion because the case presents a point under the election laws upon which the reasons for our decision should be stated.

The local option law directs that petitions for such elections shall be prepared in the form provided for in a specified statute, and in all other respects “such petitions shall be circulated and sufficiency thereof shall be determined, and may be reviewed in the same manner and procedure,” as provided in Act 4 of 1935,supra. Act 431 of 1977; Ark. Stat. Ann. § 48-801.1 (Repl. 1977). It is true, as argued by the appellants, that Section 9 of Act 4 of 1935, requiring a contest of lcoal option petitions to be filed within 15 days after the county clerk’s certification of their sufficiency, was repealed by a still later statute, Act 742 of 1977, § 117. But the point is, before that repeal the 1935 statute had already been adopted as part of the local option procedure. In that situation, where one statute specifically adopts the provisions of another statute as distinguished from adopting the law generally in force on the subject, the operation of the adopting statute will not be affected by a later repeal of the adopted statute. Howard v. State ex rel Stuckey, 223 Ark. 634, 267 S.W. 2d 763 (1954).

We cannot sustain the appellants’ subordinate argument, that the 15-day limitation does not control because they are challenging not merely the clerk’s certification of the sufficiency of the petitions but also his apparent failure to transmit that certification to the county board of election commissioners. § 2-303. First, we think any question about the regularity of the procedure must be raised within the 15-day limit. Second, the certification obviously reached the election commission, because we advanced this case on our docket in response to the appellants’ positive statement that the wet-dry issues were to be submitted to the voters at the General Election on November 4; so the election procedure must have been carried through.

Affirmed.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Robert JACKSON v. STATE of Arkansas
    CR 79-211
    607 S.W. 2d 371
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980

      James W. Haddock, for appellant.

      Steve Clark, A tty. Gen., by: Dennis R. Molock, Asst. A tty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of first degree murder, Ark. Stat. Ann. § 41-1502 (Repl. 1977), and sentenced to forty years imprisonment. We find merit in the contention raised by appellant’s appointed counsel and appellant pro se that, on the record here, the court erred in overruling appellant’s motion to suppress as evidence the rifle seized from him upon his warrantless arrest.

In December, 1978, Mrs. Martin and her paramour, Arthur Stuckey, were awakened at her house at 2 a.m. by a banging on her door. Someone outside was heard calling appellant’s name, begging him to leave the two alone. (Appellant and Mrs. Martin had previously lived together, and she had a child by him.) A shot was fired through her bedroom window. Stuckey got his rifle and returned the fire. Mrs. Martin attempted to get her children into the kitchen. When her seven year old son broke loose and ran to a window, she followed him there, at which time she saw appellant’s brother in a car and heard him ask appellant to “leave those folks alone.” She then saw appellant standing by a tree in the yard. At that point appellant fired a shot and Mrs. Martin’s son fell fatally wounded. The appellant left and Mrs. Martin and Stuckey then took the children with them to the police station where they reported the shooting.

The sheriff, who lived in another town, was called to assist in the investigation. When he arrived he went to the crime scene, and the chief of police, with three other policemen, went to appellant’s nearby residence at approximately 4:10 a.m. As they arrived they met appellant’s brother, who advised them that the door was locked from the inside. They observed appellant through a window in a lighted room, laying on a couch asleep, with the stock of a gun visible underneath the couch. They forced the door open, handcuffed appellant, and effected a warrantless arrest. They seized the gun, which was introduced at trial. A firearms examiner testified that two shells found in the yard of Mrs. Martin’s house were fired from this gun. The court granted appellant’s motion to suppress his statement as being involuntary due to appellant’s intoxication at the time it was made, which was shortly after his arrest. However, the court denied appellant’s motion to suppress the gun, finding the warrantless seizure was incidental to the arrest.

The primary issue before us is whether or not the gun was admissible in evidence. The state relies upon Rules of Criminal Procedure, Rule 12.5 (Repl. 1977), as justifying a valid seizure incidental to the warrantless arrest of appellant. See also Rules of Criminal Procedure, Rule 4.1 and 14.3 (Repl. 1977). However, since the trial of this case and the filing of the briefs here, the U.S. Supreme Court has resolved this unsettled issue in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371 (1980), decided April 15; i.e., ‘whether and under what circumstances an officer may enter a suspect’s home to make a warrantless arrest.’ There the court held that the Fourth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits, absent exigent circumstances, a warrantless, nonconsensual entry into a suspect’s home to make a routine felony arrest even when it is accomplished under statutory authority and with probable cause. In other words, the threshold of one’s home cannot reasonably be crossed without a warrant in the absence of exigent circumstances. Although the defendant must nonetheless stand trial, the exclusionary rule prohibits introduction of any evidence seized pursuant to such an arrest where the validity of the warrantless seizure depends upon a valid arrest. See also State v. Block, 270 Ark. 671, 606 S.W. 2d 362 (1980).

Exigent circumstances may exist, for example, in the area of warrantless searches when a suspect is fleeing or likely to flee, when the search is of a movable vehicle, when evidence or contraband is threatened with removal or destruction or when there is a danger of harm to the arresting officers. See Coolidge v. New Hampshire, 403 U.S. 443 (1971); Johnson v. United States, 333 U.S. 10 (1948); and Michigan v. Tyler, 436 U.S. 499 (1979). In Payton, the police, as here, acting under statutory authority and with probable cause, broke into a murder suspect’s home to make a warrantless arrest and then seized a shell casing in plain view. The New York courts held the nonconsensual entry was justified by state statutes; therefore, the evidence seized was admissible. However, as indicated, the U.S. Supreme Court held the evidence inadmissible.

Here, appellant, a local residents, was found asleep in his residence, the door locked, approximately two hours after the alleged offense. The trial court, as in Payton, found the evidence admissible based upon it being seized incidental to an arrest. Our Rule 14.3, supra, authorizes an officer, in an emergency situation, to enter and search without a warrant premises or a vehicle when there is probable cause to believe an individual therein is in imminent danger of death or serious bodily harm; or items therein are imminently likely to burn or explode causing death, serious bodily harm or substantial destruction of property; or if objects subject to seizure, if seizure is delayed, will be used to cause death or serious bodily injury, then the officer may enter and conduct a search to prevent death, bodily harm or destruction of property. We hold, in the light of Payton, that sufficient exigent circumstances are not demonstrated on the record presented. Therefore, we remand the cause to the trial court to conduct an evidentiary hearing to determine if exigent circumstances existed. If none existed, then appellant is entitled to a new trial. We have considered other arguments made by appellant’s counsel and appellant pro se and find no merit in them.

Remanded.

Purtle and Stroud, JJ., dissent.

John I. Purtle, Justice,

dissenting. I dissent because in my opinion exigent circumstances were present. The officers observed the murder weapon through a window. They had reasonable cause to believe appellant had committed a felony and were looking for him. I believe a warrantless search and seizure was authorized pursuant to Rules of Criminal Procedure, Rule 14.3 (Repl. 1977), which states:

An officer who has reasonable cause to believe that premises or a vehicle contain:
(a) individuals in imminent danger of death or serious bodily harm; or
(b) things imminently likely to burn, explode, or otherwise cause death, serious bodily harm, or substantial destruction of property; or
(c) things subject to seizure which will cause or be used to cause death or serious bodily harm if their seizure is delayed; may, without a search warrant, enter and search such premises and vehicles, and the persons therein, to the extent reasonably necessary for the prevention of such death, bodily harm, or destruction.

I do not believe Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed. 2d 639 (1980), prohibits this seizure. I would affirm.

John F. Stroud, Justice, dissenting. The majority of the court has remanded this case to the trial court because of the decision of the United States Supreme Court in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed. 2d 639 (1980). The trial court has been directed to conduct an evidentiary hearing to determine if exigent circumstances existed at the time of the arrest of appellant and seizure of his rifle.

I respectfully dissent because I do not believe the Payton case is applicable here; but even if it were, I would find that exigent circumstances existed. In Payton, the warrantless and non-consensual entry into the suspect’s home was for the purpose of making a routine felony arrest. The forced entry into the apartment occurred about 8:00 a.m. and followed two days of intensive investigation of the murder of a gas station attendant. The only similarity of this case with Payton was the forced entry through the door. In the case now on appeal, the warrantless entry and arrest occurred at 4:10 a.m., just two hours after the murder was committed. I cannot possibly characterize this arrest for murder, which occurred during the middle of the night immediately after appellant had shot and killed a seven-year-old child with a high powered rifle, as a routine felony arrest.

However, if Payton were applied, I would not remand the case for an evidentiary hearing. The trial judge committed no error by failing to hold such a hearing or make such a finding as this case was tried months before the Payton decision was handed down.

Secondly, the facts as disclosed by the record clearly indicate exigent circumstances. After the killing and the departure of appellant, the mother of the dead child and the others living there went to the Eudora Police Department. Apparently the jailer called the Chief of Police and one of them called the Sheriff of Chicot County in Lake Village. By the time the Chief of Police and the Sheriff dressed and arrived at the police station, it was 3:45 a.m. It must have been obvious to the officers that appellant had intended to kill one or both of the adults living in the shot-up house and not the seven year-old boy. I think it would have been absurd and the poorest police work imaginable for the officers to have delayed this arrest to look for a magistrate in the middle of the night while the armed killer was still at large and the target of his attack remained unharmed. It would have been equally absurd to have delayed the arrest after the officers arrived at appellant’s home and saw him through the window apparently asleep on the sofa. The only alternative to leaving appellant’s home to obtain a warrant would have been to guard all exits of the house while waiting for a warrant in hopes that appellant did not wake and use the rifle against the officers. In light of the exigent circumstances, I believe the rifle of appellant was properly admitted into evidence, and I would affirm the judgment of the trial court.


text:
    Jimmy Wayne PRUNTY v. STATE of Arkansas
    CR 80-165
    607 S.W. 2d 374
    Supreme Court of Arkansas
    Opinion delivered November 10, 1980

      E. Alvin Schay, State Appellate Defender, by: Deborah Sailings, Deputy Appellate Defender, and Ray Hartenstein, Chief Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of manslaughter, Ark. Stat. Ann. § 41-1504 (3) (Repl. 1977), and fleeing from an attempted arrest in violation of Ark. Stat. Ann. §§ 41-2822 and 41-2823 (Repl. 1977). He was sentenced to ten years and five years, respectively, to be served consecutively. The only issue raised on appeal is the admissibility of two photographs of the deceased.

A police officer observed appellant, who was intoxicated, at night driving erratically — weaving, passing cars in no-passing zones, and running cars off the road. He attempted to stop appellant, but appellant fled. A chase ensued with speeds in excess of 100 m.p.h. As they approached a curved stretch of road, appellant, driving in the wrong lane, struck an oncoming car. At the time of impact, the officer estimated appellant’s speed in excess of 120 m.p.h. Appellant’s Oldsmobile traveled 189', hit a sign, became air borne, and stopped in a ditch approximately 244' from the point of impact. The other car, a Pinto, exploded upon impact, and the car was demolished. The driver received severe injuries, and his passenger, his wife, was killed instantly.

Without objection, the state introduced several photographs depicting the scene and the condition of the two cars. However, trial counsel objected to the admissibility of two photographs of the deceased before she was removed from the wreckage. The objection was that these photographs would add nothing other than have a highly prejudicial effect which would outweigh any probative value they might have and that other evidence would “probably be introduced” to the effect she died as a result of injuries received in the collision. The trial judge overruled the objection, stating they were not color photographs, they were the best evidence of a part of what happened at the scene, and they were of probative value on the issue of “speed, force of impact.” Appellant argues here that the probative value is substantially outweighed by their prejudicial nature and, therefore, should be excluded, Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1977); and, further, the photographs are inflammatory, cumulative and irrelevant to the element of recklessness which is essential to the crime of manslaughter.

We have held that even inflammatory photographs are admissible in the sound discretion of the trial judge “if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony or to corroborate testimony.” Sumlin v. State, 266 Ark. 709, 587 S.W. 2d 571 (1979); see also Campbell v. State, 265 Ark. 77, 576 S.W. 2d 938 (1979); Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973); Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980); and Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168 (1976). Whether or not the court should admit a photograph depends upon whether the asserted inflammatory nature is outweighed by its probative value; and neither is it rendered inadmissible merely because it is cumulative or unnecessary due to admitted or other facts proved. Campbell v. State, supra. Here, the photographs, which were in black and white, were close-up views of the deceased, showing only the head injuries, and not the full extent of the injuries sustained to the other parts of her body. In our view they corroborated testimony as to the head injuries, which caused death, the reckless and excessive speed and the force of impact. Further, they were relevant to the state’s burden of proving the essential element of the crime of manslaughter; namely, recklessly causing the death of another person due to a conscious disregard of the risks involved in one’s conduct.

We hold the trial court did not abuse its discretion in weighing the probative value of the photographs against the danger of any unfair prejudice.

Affirmed.

Purtle and Mays, JJ., dissent.

John I. Purtle, Justice,

dissenting. I dissent because I believe the majority has approved the admission into evidence of any photograph, however gruesome and inflammatory, if any witness testifies about matters which are shown in the photographs. The majority opinion in effect will serve to allow inflammatory and prejudicial photographs to be used in any case even though they shed absolutely no light on any essential element of the charge or on any issue in dispute.

In my opinion, these two photographs did not shed any light on any essential element of the charge. Neither did they shed any light on any relevant issue. Had appellant been charged with a crime for which any essential element or issue involved the extent or nature of the injury sustained by the decedent I would agree with the majority opinion. In the present case there was no need to show motive or intent to cause the death of the victim in order to prove manslaughter. The essential elements in proof in manslaughter are that the accused caused the death by his recklessness and conscious disregard of the risk involved in his conduct.

In reviewing our prior decisions such as Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973), we have held photographs to be admissible for almost any reason at all. In Perry we held the photographs in question were properly admitted at the discretion of the trial court because they tended to shed light on the issues and tended to corroborate testimony and were probably useful in helping the jury understand the testimony. We did point out that the trial court properly excluded several photographs if their sole purpose was to inflame the passions of the jurors. Perry involved the death of a person by means of knife wounds inflicted by the accused. It was necessary to prove that the victim died as a result of the knife wounds. Therefore, I agree the photographs were relevant and their probative value outweighed the possible prejudice to the accused. Also, Lillard v. State, 236 Ark. 74, 365 S.W. 2d 144 (1963); Oliver v. State, 225 Ark. 809, 286 S.W. 2d 17 (1956); and Perkins v. State, 217 Ark. 252, 230 S.W. 2d 1 (1950).

In the present case there was no dispute as to the nature, extent or location of the wounds on the victim. There was nothing to prove by the introduction of the photographs. There was no dispute in the testimony nor was it difficult to understand. The only purpose to be served by these two photographs was to inflame the passions of the jurors as can be seen by the fact that the appellant received the maximum sentences allowable under the law.

Even if it could be said that the photographs were relevant, it is obvious the probative value of the photographs was outweighed by the danger of unfair prejudice. Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rule 403, was adopted for such purposes as are here present. The rule may as well not exist as it relates to photographs if we are going to allow the introduction of photographs under any and all circumstances. The extent and nature of the victim’s injuries had no relevancy to the issue before the court and jury. Her death in the accident caused by the appellant, while being chased by an officer at a speed in excess of 100 m.p.h., had not been disputed. The cause of death was clearly demonstrated by other relevant evidence.

The Arkansas Court of Appeals considered Rule 403 in a case involving manslaughter. Lee v. State, 266 Ark. 870, 587 S.W. 2d 78 (1979). There the Court of Appeals reversed the conviction because a physician was allowed to give the details of the injuries and suffering of one of the victims even though the accused had admitted the death resulted from his careless conduct. The Court of Appeals held the testimony of the doctor was relevant but the trial court abused its discretion in allowing the testimony because its probative value was substantially outweighed by the danger of unfair prejudice. I submit that the Court of Appeals was correct; and, further, that the photographs in the present case were a greater danger to unfair prejudice than was the testimony of the doctor in Lee, supra, wherein the Court stated:

It is clear that Rule 403 of the Uniform Rules of Evidence was not only designed to exclude relevant evidence on the grounds of prejudice, but a trial court in the interest in the efficient administration of criminal justice may exclude evidence, although relevant, where there is a needless presentation of cumulative evidence, upon considerations of undue delays and waste of time.

While discussing the admissibility of photographs in the case of Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980), we stated:

... A trial court is not obliged to exclude such evidence unless its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. . . .

In summation of our prior decisions I believe it is fair to say, as the majority has stated, that even inflammatory pictures may be admitted “if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony or to corroborate testimony.” However, I submit that these two photographs did not fit the rule. They shed no light on the issues, did not enable any witness to better describe the objects portrayed, the jury to better understand the testimony, nor did they corroborate any relevant testimony. These photographs should have been excluded even under our most liberal rule of admissibility of photographs.

Other jurisdictions have considered the admissibility of photographs in the manner in which I believe to be more sound than that previously utilized by this court. In the case of Jordan v. Commonwealth, Ky., 371 S.W. 2d 632 (1963), the Kentucky court dealt with a case involving manslaughter and the introduction of photographs. The trial court had admitted certain photographs into evidence at the trial of the accused on a manslaughter charge. The Court stated:

. . . photographs showing the mangled body of one of the victims as it lay on the highway was a serious and prejudicial error. It was also entirely unnecessary and improper to permit testimony showing the extent of the injuries . . . There really was no question as to the force of the collisions, which had been amply and conclusively demonstrated by the other exhibits and testimony. . . .

The Jordan case was affirmed on other grounds.

The Arizona Supreme Court has also considered such matters in the case of State v. Powers, Ariz., 571 P. 2d 1016 (1977). This also was a case of manslaughter. The trial court had allowed introduction of pictures, taken several days after the accident, which revealed the victim’s cóndition at the time of death. The undisputed cause of death in the Powers case was injuries to the head. The Arizona court stated:

. . . Nor do we find pictures probative of any other issue. This was not a case where malice aforethought was in issue. . . .

The Court went on to hold that the pictures were prejudicial and it was a reasonable possibility that the verdict might have been different had the error not been committed.

Another Kentucky case which involved introduction of photographs in Haddad v. Kuriger, Ky., 437 S.W. 2d 524 (1969). In Haddad the trial court allowed the introduction of close-up pictures of head injuries of a six year old victim of a traffic accident. The Kentucky court was unable to see any useful purpose of allowing the photographs other than it being cumulative evidence. They held the real purpose was to inflame the jury.

In my opinion, if photographs are ever going to be disallowed in a criminal prosecution on the grounds that they are not relevant or that their probative value is outweighed by the probability of prejudicial error, this is the case. There is no valid logical reason to allow these photographs because everything they were alleged to depict was adequately proven by other competent evidence. I would declare prejudicial error and reverse and remand the case.

I am authorized to state that Mays, J., joins me in this dissent.