text:
    Ollis X. HEARD v. STATE of Arkansas
    CR 93-1261
    876 S.W.2d 231
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994

      Bryant & Henry, by: Craig L. Henry, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Ollis X. Heard was convicted of possession of a controlled substance with intent to deliver. He was sentenced to life imprisonment because he is a habitual offender. We affirm the judgment of conviction.

Appellant first challenges the sufficiency of the evidence. The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence. Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). The proof in this case meets the test.

Officer Allen Stovall of the Bi-State Narcotics Task Force testified that he had been investigating the use and sale of narcotics at a house located at #16 Ferguson Street in Texarkana, Arkansas. He received information that cocaine was being used and sold at that house and obtained a warrant to search the premises. In the affidavit for the search warrant, Stovall identified the house as appellant’s residence. He testified that he and Officer Jerry Brown of the Texarkana, Arkansas Police Department went there to execute the search warrant and observed that the main front door was open and that only a screen door was closed. As Officer Brown stepped onto the front porch, Officer Stovall saw appellant begin to run toward the back of the house. Both officers chased appellant to a bedroom where Officer Stovall saw appellant sling a bottle under a bed. He looked under the bed and retrieved a bottle that contained sixteen off-white rocks of a substance that appeared to be cocaine.

Officer Brown testified to most of the same facts. He testified that he and Officer Stovall caught appellant in the bedroom, where appellant was lying on the bed with his arm underneath. Appellant was the only other person in the bedroom. A woman and two children were also in the house, but they remained in the living room. The State put on additional testimony that established that the substance in the bottle was cocaine and weighed 1.64 grams.

Appellant contends that the foregoing evidence is insufficient to establish possession of the cocaine because it was not found on his person, because there were other people in the residence, and because he had no proprietary interest in the house. It is not necessary for the State to prove an accused physically held the contraband in order to sustain a conviction if the location of the contraband was such that it can be said to be under the dominion and control of the accused. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). The,State need only prove constructive possession, and constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. Id. An accused’s suspicious behavior coupled with proximity with the contraband is clearly indicative of possession. Id.

Here, appellant fled when he saw the police on the front porch. He was found in the bedroom on a bed with his hand underneath the bed, and was making a slinging motion with the hand. A bottle containing crack cocaine was located underneath the bed. He was alone in the room. The suspicious behavior coupled with the cocaine being found in an area immediately and exclusively accessible to appellant constitutes substantial evidence of possession of cocaine.

The fact that appellant had no proprietary interest in the house is of no consequence. He was there so frequently the officers thought it was his residence. He was seen there prior to the arrival of the police and was still there when the police arrived.

Appellant next challenges the denial of his motion to suppress the evidence seized in the search of the house. He contends the affidavit was insufficient to establish probable cause because it did not state the date the criminal activity occurred within the house, and because it did not contain sufficient indicia of the reliability of the confidential informant. Appellant had standing to raise the issue because he stayed at the house often enough for the police to believe it was his residence. The United States Supreme Court has pronounced a per se rule that one’s status as an overnight guest is, alone, enough to show that one had an expectation of privacy in the home that society is prepared to recognize as reasonable. Minnesota v. Olson, 459 U.S. 91 (1990).

Appellant argues that the warrant was defective because the affidavit failed to state a specific time that the drugs were in the house. The argument is factually incorrect. The affidavit for the warrant states that “there is now being concealed .. . cocaine” at the house. Thus, the affidavit did sufficiently indicate a time frame for the illegal activity.

Appellant also argues that the warrant was defective because the affidavit failed to state facts bearing on the informant’s reliability. It states that “during this investigation, affiant [Officer Stovall] received information from a person proven to be reliable on several occasions, who has observed cocaine being possessed, used, and sold at the above described residence.” In State v. Mosley, 313 Ark. 616, 856 S.W.2d 623 (1993), we adopted the totality-of-the-circumstances analysis as follows:

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, and we reverse only if the ruling is clearly against the preponderance of the evidence. Illinois v. Gates, 462 U.S. 213 (1983); State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991). We view the evidence in the light most favorable to the appellee. State v. Villines, 304 Ark. 128, 801 S.W.2d 29 (1990).

Mosley, 313 Ark. at 618-19, 856 S.W.2d at 624 (1993). On March 1, 1990, by per curiam opinion, we modified Rule 13.1 of our Arkansas Rules of Criminal Procedure to adopt the totality of the circumstances analysis.

In Mosley we went on to follow the totality-of-the-circumstances analysis enunciated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983):

The task of the issuing magistrate is simply to make a practical, common.sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying the hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for. . .concluding]” that probable cause existed.

Mosley, 313 Ark. at 619, 856 S.W.2d at 624.

In interpreting the requirements of the rule and the totality-of-the-circumstances test, we have said it is no longer a fatal defect if an affidavit fails to establish the veracity of the informant “if the affidavit viewed as a whole provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.” Mosley, 313 Ark. at 622, 856 S.W.2d at 626. The affidavit in this case, when viewed as a whole, provided a substantial basis for cause to believe that the cocaine would be found at the house. Thus, the trial court did not err in its refusal to suppress the evidence.

Appellant next argues that the trial court erred in considering its docket sheet to determine whether appellant had been represented by counsel when previously convicted. The Attorney General agrees with appellant’s argument and concedes reversible error. We hold that the trial court did not commit reversible error by considering its own docket book. The argument comes about in the following manner. After the jury found appellant guilty, the bifurcated trial proceeded into the sentencing phase. Procedurally, at this phase of a trial, the trial court, out of the hearing of the jury, is to hear evidence of the guilty person’s previous felony convictions and thereby determine the number of prior felony convictions. The trial court then instructs the jury as to the number of previous convictions and the appropriate statutory sentencing range. The jury retires and sets the appropriate sentence. Ark. Code Ann. § 5-4-502 (Repl. 1993). This point of appeal concerns the method of proof of appellant’s prior convictions.

Before the State can use a prior conviction to enhance punishment it must demonstrate that the defendant was either represented by counsel or waived his right to counsel. Lovell v. State, 283 Ark. 425, 681 S.W.2d 395 (1984). In this case the State offered certified copies of previous convictions of fourteen felonies in the Circuit Court of Miller County, the same court in which this case was pending, and another conviction in the Circuit Court of Arkansas County. Appellant did not contest the validity of the conviction from Arkansas County. However, he argued that the certified copies of the convictions from Miller County did not reflect that he was represented by counsel and therefore could not be counted as previous convictions. The certified copies of the convictions do not in fact show that appellant was represented by counsel. To cure the defect the State asked the trial court to examine the entries for the cases in its docket book. Appellant objected because he had not been supplied with the docket sheets. The trial court examined the sheets from its own docket book and ruled that it reflected that appellant was represented in each of the prior convictions. Appellant subsequently objected to the trial court using its docket book because the entries on the individual sheets were not authenticated. The State confesses error because the sheets were not authenticated.

The method of proof of previous convictions is as follows:

(a) A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty.
(b) The following are sufficient to support a finding of a prior conviction or finding of guilt:
(1) A certified copy of the record of a previous conviction or finding of guilt by a court of record;
(2) A certificate of the warden or other chief officer of a penal institution of this state or of another jurisdiction, containing the name and fingerprints of the defendant as they appear in the records of his office; or
(3) A certificate of the chief custodian of the records of the United States Department of Justice, containing the name and fingerprints of the defendant as they appear in the records of his office.

Ark. Code Ann. § 5-4-504 (Repl. 1993).

The original commentary to the section provides: “The Commission wished to make clear the fact that the state may prove a previous felony conviction by means other than introduction of the certificates described in the statute.” Ark. Code Ann. § 5-4-504 (Repl. 1993) original commentary.

In our first case interpreting this statute we agreed with the interpretation suggested by the commission. In that case, Thompson v. State, 252 Ark. 1, 477 S.W.2d 469 (1972), the defendant was charged and convicted in Miller County, the same venue as the case at bar, and we held that the official records of Miller County were sufficient to prove previous felony convictions. They were neither certified nor authenticated. We pointed out that they were the original records, not copies that needed to be certified, and were identified as such by the clerks. In Reeves v. State, 263 Ark. 227, 564 S.W.2d 503, cert, denied, 439 U.S. 964 (1978), we held that proof of previous convictions was not inadmissible as hearsay where the circuit clerk’s testimony about the convictions was based on docket entries, and there was no suggestion that the docket entries did not correctly reflect the court’s judgments. We wrote: “Here there is no suggestion whatever that the docket entries did not correctly reflect the court’s judgments in the earlier cases in which Reeves was convicted. We find no . sound basis for saying that the trial judge’s ruling was wrong.” Id. at 231-32, 564 S.W.2d at 505.

The same reasoning applies in the case at bar. The docket book was the original, not a copy, and, therefore, there was no reason whatever to certify or authenticate that it was an exact copy. It was the docket book of the Circuit Court of Miller County, and it was being examined by the Circuit Court of Miller County for its own use. The docket sheets were not formally introduced into evidence for the jury to examine. There is nothing to prevent a Circuit Court from examining the entries of its own docket book. There was no doubt that the documents were what its proponent claimed. To this extent they are self-executing. See A.R.E. Rule 901 (a). The book was not hearsay. A.R.E. Rule 803 (8). Trial courts are frequently required to examine their own docket books to determine various matters. For example, the docket entries are often used by circuit courts to determine whether a speedy trial has been afforded. In such cases, we have said that the judge’s docket entry is competent, but rebuttable, evidence of the facts recited. Prout v. State, 256 Ark. 723, 510 S.W.2d 291 (1974).

The Attorney General’s confession of error is based upon his reading of our case of Stewart v. State, 300 Ark. 147, 777 S.W.2d 844 (1989). In that case, we upheld the Circuit Court of Pulaski County’s use of certified copies of docket entries from the Circuit Court of Woodruff County. In upholding the use of the entries from the docket sheets we merely mentioned that they were certified. We did not hold that all docket entries must be certified before they are admissible as proof of prior convictions. The factual distinction between Stewart and the case at bar is clear. In Stewart a copy of the entry from the docket book of the Circuit Court of Woodruff County was being introduced in a proceeding in a Circuit Court in Pulaski County. In the case at bar, the trial court was looking at its own original record and not at a copy of some other court’s proceedings.

Appellant also argues that it was error for the trial court to consider the entries from the docket sheets because they were not supplied to him until the penalty phase of the trial began. We have said that an accused is entitled to discover his prior convictions if they are to be utilized to enhance his sentence as a habitual offender. Malone v. State, 292 Ark. 243, 729 S.W.2d 167 (1987). Appellant was furnished a pen pack that reflected each of his prior convictions. While the pen pack did not reflect that he had an attorney in each case, it was clearly sufficient to put him on notice the State was going to ask for enhancement because of those specific convictions. He, more than anyone else, knew he had been represented by an attorney on each of the convictions and should have anticipated the deficiency being corrected. A defendant cannot rely on discovery as a total substitute for his own investigation. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). Further, in order to demonstrate that a trial court should have imposed sanctions for a discovery violation, a clear abuse of discretion must be shown. See Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983). The trial court did not abuse its discretion in refusing to exclude the reading of its own docket entries.

Appellant argues as his fourth point of appeal that the trial court erred in refusing to grant his motion for discovery of the identity of the confidential informant. Under Rule 17.5(b) of the Arkansas Rules of Criminal Procedure, the State is not required to disclose an informant’s identity where his identity is a prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the accused. Brown v. State, 310 Ark. 427, 837 S.W.2d 457 (1992). The general rule is that when an informant is also a witness or a participant to the criminal incident, the identity of the informant should be disclosed. Id. This court has not required disclosure of the identity of an informant where the defendant was charged only with possession and the informant merely supplied information leading to the issuance of the search warrant. See Jackson v. State, 283 Ark. 301, 675 S.W.2d 820 (1984).

In the present case the informant did not witness or participate in the criminal incident. He merely supplied the police with information that led to the search of the residence where they found appellant in possession of cocaine. Under these circumstances it was not error for the trial judge to refuse to order disclosure of the identity of the informant.

Appellant’s final assignment of error is that the trial court erred in failing to sanction the prosecuting attorney for remarks and gestures made in the presence of the jury. This assignment of error involves appellant’s objection to the prosecutor’s shaking his head “no” during cross-examination of a witness. Appellant was attempting to have the witness, Officer Jerry Brown, identify a diagram of #16 Ferguson Street. The prosecutor objected to the mischaracterization of the Officer’s earlier testimony regarding the diagram. Appellant then repeated the question, and the prosecutor shook his head. When appellant complained to the judge, the prosecutor responded that he was shaking his head, not in an attempt to influence the witness, but because he objected to the question. The prosecutor then objected that the question had been asked and answered, and the judge sustained the objection.

Appellant did not object to the prosecutor’s actions. He merely stated that he would like the record to reflect that the prosecutor was shaking his head “no” in an attempt to influence the answer of the witness. Moreover, appellant did not ask for any relief, such as a mistrial, for what he characterized as prosecutorial misconduct. Failure to object precludes appellate review of an issue. Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992).

Because of the sentence in this case an examination of the record has been made in conformity with Rule 4-3(h) of the Rules of the Supreme Court, and we find no reversible error on other rulings that were adverse to appellant.

Affirmed.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Katherine BARNHART v. CITY OF FAYETTEVILLE, et al.
    93-336
    875 S.W.2d 79
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994

      E. Kent Hirsch, P.A., by: E. Kent Hirsch and Pearson, Evans & Chadwick, by: Marshall Dale Evans and George K. Cracraft, for appellant.

      The Niblock Law Firm, by: Katherine C. Gay and Walter R. Niblock, for appellees.

      Friday, Eldredge & Clark, by: Herschel H. Friday, William H. Sutton, Larry W. Burks and Jeffrey H. Moore, for appellee Financial Guaranty Ins. Co.

      Everett, Mars & Stills, by: John C. Everett, for Amicus Curiae James M..McCord.
   Steele Hays, Justice.

This is a class action brought by appellant Katherine Barnhart on behalf of herself and other Fayetteville taxpayers and sanitation ratepayers against the Northwest Arkansas Resource Recovery Authority (Authority), Union National Bank of Little Rock, Financial Guaranty Insurance Company (FGIC), Washington County and the Cities of Fayetteville (City) and West Fork (appellees). A.G. Edwards & Sons, Inc., and the partners of the Rose Law Firm and of Wright, Lindsey and Jennings were joined as third party defendants.

Fayetteville, West Fork and Washington County had formed the Authority under the provisions of Act 699 of 1979. That act authorized municipalities and counties to organize authorities for the disposal of solid waste, including the power to later withdraw, without impairment of financial obligations incurred during participation. The project’s purpose was to plan, construct and finance an incinerator to burn solid waste. The Authority’s nine member board of directors consisted of seven Fayetteville directors and one each from West Fork and Washington County. The plan was for the incinerator to generate steam or heat for the production of electricity.

The Authority issued bonds totalling $22,405,000 to finance the development and construction of the facility. A site was selected and a construction contract entered into. The Authority also contracted with Financial Guaranty Insurance Company (FGIC) to insure the repayment of the bonds, obligating FGIC to pay any principal or interest due on the bonds but unpaid by the Authority. Union National Bank of Little Rock was named as trustee for the bondholders. In furtherance of the project the City entered into a Waste Disposal Agreement (WDA) with the Authority by which the City agreed to unconditionally guarantee the debts of the Authority, including debt service on the bonds. The revenue stream from which the bonds were to be repaid was provided by the WDA which stated that its members would deliver waste to the project and pay processing charges (“tipping fees”) for the disposal of such waste. Tipping fees were payable solely from income received by the cities and county from sanitation fund revenues and such fees had to be sufficient to pay operating expenses of the facility and debt service on the bonds.

While construction was under way public opposition over site selection and environmental concerns rose to such a level that the Fayetteville board of directors submitted the question of continuing the project to a non-binding vote by the voters of Fayetteville. On March 8, 1988, a majority of those voting voted against continuing the project and on March 9 Fayetteville notified the Authority it was withdrawing. On March 11 the Authority terminated the project.

Some $8,000,000 in bond proceeds had by then been expended. In order to retire the bonds at the first nonpenalty call date, the City of Fayetteville enacted Ordinance No. 3444 which increased the sanitation fees by $2.02 per month for residential and commercial users. After the passage of Ord. No. 3444, appellant Katherine Barnhart filed this class action against the appellees, the Bank and FGIC, alleging that the collection of revenue under Ord. No. 3444 constituted an illegal exaction.

The case was tried as to the issues between the plaintiff and the defendants, with the cross-claim and third party claims specifically reserved for a later date “pursuant to Rule 42, Arkansas Rules of Civil Procedure.” The order recites the finding of the chancellor that Ord. No. 3444 is neither an illegal exaction nor ultra vires and concludes: “Pursuant to the rule 54(b) Arkansas Rules of Civil Procedure, it is specifically determined by the Court that the entry of this order shall be a Final Judgment on the Complaint of the Plaintiff.”

While ARCP 42(b) does allow the trial court to order separate trials under certain circumstances, a separate trial order under Rule 42(b) usually results in but one judgment. Wright Miller, Federal Civil Procedure, § 2387. And an order granting separate trials under Rule 42 is not appealable as a final judgment. “There is no final judgment until all of the issues have been resolved and judgment entered on the whole case unless a lesser judgment is certified under the provisions of Rule 54(b).”

Id. at § 2392.

ARCP 54(b) provides that the trial court may direct a final judgment as to one of several parties or claims, “only upon an express determination, supported by specific factual findings, that there is no just reason for delay.” There is no such determination in this case. Some years ago we emphasized that language in Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987):

We give notice that merely tracking the language of Rule 54(b) will not suffice; the record must show facts to support the conclusion that there is some danger of hardship or injustice which would be alleviated by an immediate appeal.

That admonition has been reiterated numerous times since. See Davis v. Wausau Insurance, 315 Ark. 330, 867 S.W.2d 444 (1993); Franklin v. OSCA, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992); Fisher v. Citizens Bank 307 Ark. 258, 819 S.W.2d 8 (1991); Austin v. First National Bank, 305 Ark. 456, 808 S.W.2d 773 (1991):

In this case before us, the judgment granting the motion for interlocutory appeal does not include specific findings of any danger of hardship or injustice which could be alleviated by an immediate appeal. Nor does the judgment detail facts which establish that such a hardship or injustice is likely. Due to this noncompliance with Rule 54(b), we dismiss this appeal without prejudice to refile it at a later date.

Id., p. 332.

No such determination was made in this case and, accordingly, the appeal is dismissed.


author: David Newbern, Justice.

text:
    James HUNTER v. STATE of Arkansas
    CR 93-617
    875 S.W.2d 63
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994

      William M. Howard, Jr., for appellant.

      Winston Bryant, Att’y Gen., by; Kent G. Holt, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, James Hunter, was tried by jury and convicted of kidnapping, theft, theft by receiving, two counts of rape, and two counts of burglary. He argues the in-court identification of him by two victims should have been suppressed because the witnesses had identified him prior to the trial in a “show up” situation which was impermissibly suggestive. While we find no merit in that argument, we must reverse and remand for a new trial in response to his other contention that the Trial Court’s refusal to grant a continuance due to the prosecutor’s failure to comply with a discovery request resulted in unfair prejudice.

There was evidence from which the jury could have concluded these facts. Sheila Cook was assaulted in her home and raped by a man she could not identify, other than to say he was a black person, because he had an afghan taken from her couch wrapped around his head. The assailant twice forced her to engage in sexual intercourse and then left with a small amount of her money and her husband’s Remington 30-06 rifle. Mrs. Cook called her husband and the police immediately after the incident. Samples of semen and hair were removed from her and preserved for blood grouping and DNA testing.

Less than two weeks later a man entered the home of Larry Knight. He was first seen by Mr. Knight’s daughter, Missy, who after becoming aware of and observing the intruder for a second or two, screamed and ran. As she fled down a hallway, the intruder followed and collided with Mr. Knight who was running from the opposite end of the house in response to his daughter’s scream. Mr. Knight had an opportunity to observe the intruder after the collision for one or two seconds at a distance of approximately six feet. The intruder ran, and Mr. Knight called the police. They described the intruder to the police as a black male who was wearing a yellow or mustard colored shirt and dark pants.

On the same day Mr. Hunter had a traffic accident. The investigating officer did not have his ticket book with him and asked Mr. Hunter to go to the police station so that he could issue him a citation for driving without a license. Mr. Hunter failed to arrive at the station, and an officer was sent to find him and bring him to the station. While Mr. Hunter was at the station receiving his citation the Knights arrived to confer with the police about the offense committed against them. They saw Mr. Hunter, and told an officer he was the man who had been in their home earlier. Mr. Hunter was arrested and charged with burglary.

A search warrant was issued, and. several stolen firearms were found at Mr. Hunter’s residence, including Mr. Cook’s Remington 30-06 which had Mr. Hunter’s fingerprints on it. The State gathered blood and hair samples from Mr. Hunter, and these were compared with the samples gathered from Mrs. Cook. The information was then amended to include burglary, kidnapping, rape, theft by receiving, and theft. The trial was set for June 10, 1992.

Mr. Hunter filed a motion for discovery on March 16, 1992, in which he requested any reports or statements of experts concerning the case, including the results of any scientific tests. The prosecutor responded and informed Mr. Hunter he was welcome to any information in his file. On June 9, 1992, the State asked for and was granted a continuance so that the samples collected from Mrs. Cook and Mr. Hunter could be sent to the Federal Bureau of Investigation’s DNA testing laboratory. The Trial Court reset the trial date for October 7, 1992.

On September 2, 1992, Mr. Hunter, in a lengthy motion for discovery, asked for all materials relating to the DNA testing including autoradiographs, lab notes, protocols, and other specific operating procedures.

On September 24, 1992, Mr. Hunter moved for a continuance on the ground that the notes and materials which were requested in his previous motion for discovery had not been furnished to him by the State. The Trial Court granted this motion on October 6, 1992, and reset the trial for November 5, 1992.

On November 2, 1992, Mr. Hunter requested another continuance as the State still had not provided the information he requested concerning the DNA test. The Trial Court asked Mr. Hunter’s counsel to “waive” the issue. Counsel refused. The Trial Court then denied the motion and the trial proceeded.

During the trial both Mr. Knight and his daughter positively identified Mr. Hunter as the man who had been in their home. Each stated the identification was based on their recollection of Mr. Hunter’s appearance at the time of the incident and not on the identification which occurred at the police station. Mr. Hunter objected and stated the identification was the result of a show-up and impermissibly suggestive. The Trial Court overruled the objection and allowed the in-court identification. The jury convicted Mr. Hunter on all counts and sentenced him to ninety-one years imprisonment.

We reverse because of the failure to provide the discovery requested and the refusal of the continuance. We address the matter of the identification testimony as it may arise on retrial.

1. Discovery violation

Arkansas R. Crim. R 17.3 states in part that “[t]he prosecuting attorney shall use diligent, good faith efforts to obtain material in the possession of other governmental personnel which would be discoverable if in the possession or control of the prosecuting attorney.” Reversible error exists when a prosecutor fails to comply with an appellant’s timely request for discovery, resulting in prejudice to the appellant. See Hall v. State, 306 Ark. 329, 812 S.W.2d 688 (1991).

While Mr. Hunter’s point of appeal is couched in terms of the Trial Court’s failure to grant a continuance, the gravamen of the point is the fact that the State had not furnished the materials necessary to conduct effective cross-examination of the State’s expert witness, an employee of the FBI, who was to present the DNA evidence linking Mr. Hunter to the rape of Mrs. Cook. The State’s expert witness testified he was not made aware, until the day before the trial, of Mr. Hunter’s previous requests for the information. It is apparent the prosecution had done nothing toward seeking the information to comply with the defense request.

The only argument presented to us by the State in response is that Mr. Hunter’s counsel lacked diligence and suffered no prejudice due to the failure to supply the information sought, thus the Trial Court’s refusal of a continuance was not an abuse of discretion.

In Swanson v. State, 308 Ark. 28, 823 S.W.2d 812 (1992), we affirmed a conviction resulting from a trial in which DNA test results were presented by the State. Swanson had been granted four continuances, the first three of which were due to the fact that the DNA test results had not been received. In conjunction with his final continuance motion, Swanson’s counsel stated he had been unable to locate but one expert in Arkansas capable of presenting the testimony required. The Trial Court asked why that one witness could not be presented, and counsel declined to answer. Counsel stated he had no other expert in prospect. The continuance was denied.

We affirmed Swanson’s conviction because counsel had had months to locate a suitable expert, but in the process of doing so, we said:

We have often written that the decision to grant or deny a continuance is addressed to the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of that discretion, see, e.g., Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990), but we have also written:
DNA tests should not be ruled admissible before the accused’s expert has had a chance to examine the evidence, procedures, and protocol. . . . [A]ccess to data, methodology, and actual results are crucial. An accused must be given the opportunity for independent expert review before a determination of reliability is made.
Prater v. State, 307 Ark. 180, 200, 820 S.W.2d 429 (1991). Thus the denial of a continuance which would deprive an accused of the chance to have an independent review of DNA analysis will be closely examined.

In this case, Mr. Hunter’s counsel did not announce that he had no expert available. To the contrary, he stated he had located an expert in Birmingham, Alabama, but could not possibly take advantage of her expertise without thq information the State had failed to provide. The circumstances here are thus substantially different from those in the Swanson case, and we must reverse. Counsel was entitled to the materials sought, and absent a lack of diligence, the failure of the State to provide them was unfairly prejudicial to Mr. Hunter. The continuance should have been granted.

2. Witness identification

If there are suggestive elements in a pretrial identification procedure making it all but inevitable that one person will be identified as the criminal, the procedure is so undermined that it violates due process. See Chism v. State, 312 Ark. 559, 849 S.W.2d 959 (1993). A witness identification of a suspect at a police station, however, when the police have not orchestrated a pre-trial identification, does not invalidate a subsequent in-court identification. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991).

Mr. Hunter contends the pre-trial identification was impermissible and the in-court identification was thus tainted and unreliable. He alleges the police conspired to have him present at the station when the victims arrived. From the record, however, it could easily be concluded that the witnesses were at the police station of their own accord and spontaneously identified Mr. Hunter who was at the police station on a completely unrelated matter.

It is for the Trial Court to determine if there are sufficient aspects of reliability to admit evidence of the identification, and it is for the jury to determine the weight given to it. A trial court’s ruling will not be reversed unless it is clearly erroneous, considering the totality of the circumstances. Chism v. State, supra.

The facts which support the reliability of the in-court identification are: (1) both witnesses had an unrestricted closeup view of Mr. Hunter for a second or two; (2) although the initial description only concerned the intruder’s clothes, Mr. Knight also added a description of the intruder’s hair cut, and facial features; (3) there was no other identification of a suspect; (4) both witnesses stated at the police station and at trial that they recognized him as the man they saw in their home; (5) there was not an early failure to identify Mr. Hunter; and (6) the pre-trial identification occurred on the same day as the burglary. No error occurred on this point;

Reversed and remanded.


text:
    Calvin Lee MARSHALL v. STATE of Arkansas
    CR 93-1081
    875 S.W.2d 814
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994
    [Rehearing denied June 6, 1994.]

      Simes & Simes, by: Alvin L. Simes, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Calvin Lee Marshall, appeals from his conviction of the capital murder of Robert Scheid for which he was sentenced to life imprisonment without parole, the capital murder of Susan Conwell for which he was sentenced to life imprisonment without parole, the kidnapping of Susan Conwell for which he was sentenced to sixty years imprisonment, and the rape of Susan Conwell for which he was sentenced to sixty years imprisonment. We find no merit in his arguments for reversal and affirm.

Mr. Marshall was arrested after his picture was identified in a photographic lineup by Ms. Conwell’s fiance, David Denner, and an acquaintance, Lauren Crews. The victims, along with David Denner and Michael Pesicek, were en route down the Mississippi River destined for St. Croix after purchasing a sailboat in Memphis. When the boat’s auxiliary engine failed to operate properly, they were forced to dock near Helena where they were joined by Mr. Crews who was also travelling down the Mississippi by boat. While the group was awaiting the repair of the engine, Ms. Con-well befriended Mr. Marshall and Curtis Pollard. After shooting pool with them on the afternoon of October 1, 1991, she and Mr. Pesicek invited the two men to the boat for dinner.

Evidence was presented that the two men went to the boat with Ms. Conwell and Mr. Pesicek and that they ate dinner and consumed alcoholic beverages. When Mr. Marshall and Mr. Pollard were ready to leave they asked for help in finding their way back to Helena. According to Mr. Pollard when the group was approximately 100 yards from the boat, where Mr. Denner and Mr. Pesicek had stayed, Mr. Marshall kicked Mr. Scheid to the ground and stabbed him with a knife. Mr. Marshall forced Ms. Conwell into the bushes where she was raped by Mr. Pollard and Mr. Marshall. Mr- Marshall then stabbed Ms. Conwell no less than nineteen times, and both men fled from the area. Mr. Scheid and Ms. Conwell died as a result of the violent attack.

1. Sufficiency of the evidence

Mr. Marshall contends the evidence was insufficient to sustain the convictions due to evidence of his intoxication, evidence that another person may have committed the crime, and the possibility a knife other than the one introduced into evidence was the murder weapon. Mr. Marshall moved for a directed verdict at the close of the State’s case and then presented evidence. He did not attempt renewal of the motion until after the jury had been charged. According to Ark. R. Crim. P. 36.21(b) any question pertaining to the sufficiency of the evidence is waived when the objection is not renewed at the close of all the evidence. See Cummings v. State, 315 Ark. 541, 869 S.W.2d 17 (1994). An attempt to renew a directed verdict motion is ineffective when it occurs after the jury has been charged. See Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994).

2. Curtis Pollard’s testimony

Mr. Marshall’s next argument concerns the testimony of Mr. Pollard describing how Mr. Marshall stabbed the victims and raped Ms. Conwell. He asserts that it was unreliable due to Mr. Pollard’s intoxicated state on the night of the murders and the fact that the testimony was given in exchange as part of a plea bargain.

We do not reverse a trial court’s ruling on admissibility of evidence unless it is clearly erroneous. The defense was free to cast doubt upon the reliability of Mr. Pollard’s testimony through cross-examination. The arguments that his ability to observe was hindered by intoxication and that his testimony was induced by his plea bargain are of the sort going to the weight of his testimony to be assigned by the jury rather than its admissibility. See Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993); Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993); Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992); Gavin v. State, 309 Ark. 158, 827 S.W.2d 161 (1992).

3. Standing to object to search

Mr. Marshall argues the Trial Court erred by denying his motion to suppress certain articles of clothing found by the authorities in a search of his mother’s house. According to his mother’s testimony he lived with his grandmother and stayed with his mother only occasionally. He had no standing to raise any Fourth Amendment right his mother might have had to object to a search of her premises. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).

In finding that Mr. Marshall lacked standing to object to the search we note there was no showing that he had been an “overnight guest” in his mother’s home at the time the search occurred. Thus, unlike the accused in Minnesota v. Olson, 495 U.S. 91 (1990), Mr. Marshall had no reasonable expectation of privacy in his mother’s home.

4. Drawing of the venire

Mr. Marshall argues that reversible error occurred due to the location of the jury selection box and the manner in which the names were selected from the box outside the jury selection room. The statutes he contends were violated are Ark. Code Ann. § § 16-32-105 and 16-32-108 (Repl. 1994).

Section 16-32-105 provides that “[a]t the time and place designated, the wheel or box shall be unlocked in open court.” The statute further states that “the circuit judge shall cause to be drawn the number of names . . . necessary . . . .” Section 16-32-108 also.refers to unlocking the box in open court. Mr. Marshall objected because the jury selection box was not present in the jury selection room. Mr. Marshall also objected to the fact that one of the Trial Court’s clerks entered the jury selection room with four names which had been drawn from the box. According to his objection, Mr. Marshall desired the names to be drawn in the presence of the judge.

First, it should be noted that § 16-32-105 provides only that the circuit judge shall cause the names to be drawn. The statute, on its face, does not require the presence of the judge when the names are drawn. The objection on this ground is baseless. Second, the statute requires that the names be drawn in open court. On page 60 of the record Mr. Marshall’s attorney states, “I am . . . asking the court to . . . place the juror potential list in this room ... and not to have that box out in the courtroom where there are members of the public . . . .” The purpose of the statute is to ensure that the drawing of the names be open to the public. See Hall v. State, 259 Ark. 815, 537 S.W.2d 155 (1976). As the jury selection box was in the courtroom, the statute was not violated.

The Trial Court attempted to understand the nature of the objection and finally concluded that there had been no allegation of jury tampering or improper procedure which could have prejudiced the accused. We have no reason to disagree with his assessment.

5. Continuance

Mr. Marshall argues his motion for a continuance should have been granted due to the fact that a potential witness, Michael Pesicek, did not appear for the trial. He contends he has a right to a continuance if witnesses cannot be found or are unavailable and the accused is not dilatory.

A trial court’s denial of a motion for a continuance will not be reversed absent a clear abuse of discretion, and the defendant has the burden of showing an abuse of discretion. See Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991). Arkansas Code Ann. § 16-63-402(a) (1987) requires a party moving for a continuance for the purpose of procuring the presence of a witness to file an affidavit showing facts the affiant believes the witness’s testimony will tend to prove. Johnson v. State, 305 Ark. 580, 810 S.W.2d 44 (1991). The statute applies in criminal cases, and an abuse of discretion in denying a continuance will not be found when there is no compliance with it. Id. As Mr. Marshall failed to file an affidavit, the Trial Court did not abuse his discretion.

6. Admission of photographs

The State introduced photographs of the crime scene and the victims after the murder. Mr. Marshall objected on the ground that they were more prejudicial than probative. Ordinarily we would not review an argument that it was an abuse of discretion to admit photographs when copies of the photographs are not included in the abstract as required by Ark. Sup. Ct. R. 4-2(a)(6).

Rule 4-2 provides that photographs which must be examined for a clear understanding of the testimony must be attached to the abstract unless this procedure is shown to be impracticable and waived by the Court on motion. See Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). As, however, Mr. Marshall was sentenced to life without parole, Ark. Sup. Ct. Rule 4-3(h) requires this Court to review all errors prejudicial to the appellant.

We have reviewed the photos and testimony in the record and find that Mr. Marshall’s contention is without merit. The admissibility of photographs is in the sound discretion of the Trial Court, and a reviewing court will not reverse absent a showing of manifest abuse. Haynes v. State, 309 Ark. 583, 832 S.W.2d 479 (1992). Gruesomeness alone is not a basis for excluding photographs from evidence. See Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Gruesome photos are admissible if they assist the trier of fact by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony or by enabling jurors to better understand the testimony. The photos which were introduced assisted the jury in understanding or assisted the witnesses in testifying. The Trial Court did not abuse his discretion.

7. Photographic identification

Mr. Marshall contends the photographic lineup from which Mr. Denner and Mr. Crews identified Mr. Marshall was “totally suggestive.” He does not, however, suggest how or why that was so, but shifts to argument that a photographic line-up requires the presence of counsel, citing United States v. Ash, 461 F.2d 92 (D.C. Cir. 1972). In the Ash case it was held that when an accused is in custody and a photographic line-up occurs, notice to counsel is required as the Supreme Court stated in United States v. Wade, 449 U.S. 431 (1981), in the case of a corporeal line-up.

Mr. Marshall was not in custody when the photo lineup occurred. He could not have been afforded counsel, even if there were such a- right, prior to becoming known by the police as a suspect in the case.

8. Conviction of the underlying felony

The State points out that error occurred because Mr. Marshall was convicted of both capital felony murder of Ms. Conwell and the underlying predicate felony, rape. Mr. Marshall failed to raise this issue at the trial and has not argued it on appeal. We decline to address it at this juncture.

This Court will not consider errors raised for the first time on appeal. See Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988). There are only four exceptions to this rule: (1) when error is made by a trial court without knowledge of the defense counsel who thus has no opportunity to object; (2) when a trial court should intervene on its own motion to correct a serious error by admonition or by mistrial; (3) when evidentiary errors affect a defendant’s substantial rights although they were not brought to the court’s attention, and (4) in death penalty cases when prejudice is conclusively shown by the record and we would unquestionably require the trial court to grant relief under Ark. R. Crim. P. 37. See Hughes v. State, supra; Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

In all other circumstances a contemporaneous objection is required to preserve a point for review. Even constitutional arguments are waived unless raised before a trial court. Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993). We note, however, that Mr. Marshall is not precluded from raising this issue if he chooses to initiate a separate proceeding pursuant to Ark. R. Crim. P. Rule 37. See Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982).

Pursuant to Ark. Sup. Ct. R. 4-3(h) we have considered all of Mr. Marshall’s objections on which the Trial Court made an adverse ruling. We find no prejudicial error.

Affirmed.


author: Tom Glaze, Justice.

text:
    IN THE MATTER OF THE ESTATE OF Othar HARP Tommy Harp, et al. v. Sam Harp
    93-1277
    875 S.W.2d 490
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994

      Michael E. Kelly, P.A., by: Michael E. Kelly, for appellants.

      Randall Hall, for appellee.
   Tom Glaze, Justice.

Othar Harp died January 30, 1992, leaving heirsmt-law of sons Sam and Joe Harp; daughters Sue Calbert and Ñola Lete; and grandchildren Jim, Tommy, and Rinda Harp who are children of Othar’s deceased son, Jim Harp. Othar’s will was admitted to probate, and according to its terms, Sam Harp was appointed executor. Sam Harp filed a petition requesting the court to interpret provisions of the will which appeared ambiguous and conflicting. The three grandchildren subsequently filed a petition to contest the will. The grandchildren contended that, when Othar executed his will, he was incompetent and had acted under undue influence and duress. They also claimed that the will’s provisions were ambiguous and incapable of being interpreted or reconciled and that Othar’s estate should be distributed in accordance with the laws of intestacy. The grandchildren’s contentions were rejected by the probate court, and they appeal that court’s decision.

On appeal, the only issue involves the interpretation of Othar’s will and the ambiguity caused by paragraph 5 and paragraph 7 because both appear to be residuary clauses. The probate court found the two paragraphs were ambiguous with misspelled names and missing words, but it also considered that there is a legal presumption against intestacy and that the testator is presumed to have intended to dispose of his entire estate. In reading all of the provisions of Othar’s will, the probate court upheld the will’s validity, finding that paragraph 5 was a specific residuary clause devising the remainder of Othar’s real estate to his son, Sam, and paragraph 7 was a general residuary clause benefiting Othar’s daughters.

For reversal, the grandchildren argue that the probate court could not determine Othar’s intent from reading the entire will and reaching the conclusion it did without resorting to speculation. They suggest Othar should be declared to have died partially intestate, and to support their proposition, they cite Ark. Code Ann. § 28-26-103 (1987), which provides that “[i]f part but not all of the estate ... is validly disposed of by will, the part not disposed of . . . shall be distributed as provided by law with respect to the estates of intestates.” The grandchildren argue to hold otherwise effectively disinherits them.

The executor, Sam Harp, counters by arguing the probate court properly employed rules of construction in giving effect to all provisions in Othar’s will, he says to hold as the grandchildren argue, would cause paragraphs 5 and 7 to be null and void. Additionally, Sam Harp points to the clear division in the will between paragraphs dealing with devises of real property and bequests of personalty, and argues this division supports the logical construction given paragraphs 5 and 7 by the probate court. Finally, Sam Harp states the grandchildren were not disinherited by the court’s construction, since the will provides for a bequest of $500 to each of them.

In the interpretation of wills, the paramount principle is that the testator’s intent governs. In Re the Matter of the Estate of Lindsey, 309 Ark. 596, 832 S.W.2d 808 (1992); Cross v. Manning, 211 Ark. 803, 202 S.W.2d 584 (1947). The testator’s intent is to be gathered from the four corners of the instrument itself. Armstrong v. Bulter, 262 Ark. 31, 553 S.W.2d 453 (1977). Further, the intention of the testator to dispose of his entire estate will be presumed, unless the language of the will shows the contrary. Cross, 211 Ark. 803, 202 S.W.2d 584. And while this presumption is not controlling, it must always be considered when the language is so ambiguous as to require construction. Id. In construing a will, a court should give force to each provision, and only when there is an irreconcilable conflict between two clauses, must one give way to the other. Lindsey, 309 Ark. 596, 832 S.W.2d 808.

As mentioned above, Othar’s will contains two residuary clauses which appear to conflict, necessitating resolution by the. court. Those two clauses read as follows:

-5-
All the rest of my estate wherever situated I give, devise and bequeath to my son SAM HARP.
-7-
All the rest residue and remainder of my estate including any failed or lapsed gifts and bequeath to my daughters ÑOLA McLEET and SUE CALBERT in equal shares if both survive my death or to the survivor of the two.

The probate court found that paragraph 5 is meaningless unless read in light of preceding paragraphs 3 and 4 which devise two separate tracts of land. Paragraph 6, on the other hand, bequeaths specific sums of money to the grandchildren and paragraph 7 is a general residuary clause. The probate court found paragraph 5 was the last of a series of paragraphs dealing with devises of real property, and thus, the court held paragraph 5 was a specific residuary clause of any remaining real estate not already devised in paragraphs 3 and 4. Further, the court held that paragraphs 6 and 7 would be meaningless unless paragraph 5 was interpreted as a specific residuary clause. Under this interpretation, the court further concluded paragraph 7 was a general residuary clause — and as such, it disposed of personal property or other property not already disposed of by the prior provisions of the will.

Based on the language and organization of Othar’s will, we find the interpretation by the probate court is correct. Such holding is consistent with this court’s prior decision that a will may contain both a specific residuary clause and a general residuary clause, or several specific residuary clauses. In the Matter of the Estate of Lindsey, 309 Ark. 596, 832 S.W.2d 808 (1992). Further, where a will contains two or more clauses that are apparently residuary in character, the court should determine whether one or more refers to a specific or limited residuum. Id.

The probate court’s application of the foregoing rules gives force and effect to all the paragraphs of Othar’s will. As stated previously, it is generally the intention of a testator when executing a will that his or her will be given full effect whenever possible, and there is nothing in Othar’s will which indicates Othar intended to devise and bequeath anything less than his entire estate.

For the foregoing reasons, we affirm.

      All (he hcirs-at-law received devises or boquesls under the will. Additionally, Othar’s stepson, Fred Coonts, was named a devisee.


author: Tom Glaze, Justice. Robert H. Dudley, Justice, Robert L. Brown, Justice, dissenting.

text:
    Rachael MARTIN v. Greg MARTIN and Alice Martin
    93-935
    875 S.W.2d 819
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994

      Martha P. Gilpatrick, for appellant.

      Gibson & Rhodes, by; Richard Rhodes, for appellees.
   Tom Glaze, Justice.

In this adoption case, Rachael, the natural mother, and the adoptive parents, Rachael’s brother and sister-in-law, appeared with an attorney before the probate judge on December 10, 1991, to present a petition for adoption. The judge, however, refused to approve the petition and enter an interlocutory decree because Rachael had executed her consent to adoption only that day (December 10th). By law, Ark. Code Ann. § 9-9-209(b)(l) (Repl. 1993), Rachael had ten days within which she could withdraw her consent, and no order of adoption could be entered prior to the withdrawal period. Ark. Code Ann. § 9-9-212(a) (Repl. 1993). The judge explained this statutory withdrawal period to Rachael in open court. Afterwards, the adoptive parents filed their petition for adoption on December 13, 1991, and on December 23, 1991 — thirteen days after Rachael executed her consent — the probate judge signed and entered the interlocutory adoption decree.

Rachael did not perfect an appeal from the trial judge’s decree or motion for a new trial under ARCP Rule 59. However, eighty-seven days after entry of the adoption decree, she filed her petition to set it aside. While she alleged that the adoptive parents obtained her consent through fraud and duress, the judge found no fraud and refused to set aside her consent and the adoption decree.

Significantly, as we address more fully below, Rachael chose not to challenge on appeal the lower court’s ruling that no fraud o.r duress occurred. Instead, she argues the adoptive parents failed to comply strictly with the provisions of three adoption statutes, Ark. Code Ann. § § 9-9-209, 9-9-212(a) and 9-9-214 (Repl. 1993), and the court erred in refusing to set aside the interlocutory decrees for such noncompliance. In sum, Rachael contends her consent was not properly or timely executed and a hearing on the adoption petition was not timely held.

The adoptive parents, on the other hand, rejoin by pointing out that the statutory provisions were complied with either by strict or substantial compliance. They emphasize, too, the trial judge’s findings that Rachael had been fully apprised in open court that she had ten days to withdraw the consent, that the decree was entered thirteen days after she executed her consent, and that she waited nearly three months from when she signed the consent before filing her petition to set aside the adoption decree.

Rachael’s arguments ignore the settled rule that consent to adoption can be withdrawn after an interlocutory order only upon a showing of fraud, duress, or intimidation. Pierce v. Pierce, 279 Ark. 62, 648 S.W.2d 487 (1983); McClusky v. Kerlan, 278 Ark. 338, 645 S.W.2d 658 (1983); see also Ark. Code Ann. § 9-9-209(a) (Repl. 1993). As previously mentioned, Rachael does not argue that her consent was obtained by fraud and duress.

It is suggested that the rule in Pierce and McClusky presupposes a consent executed in strict compliance with the provisions of § 9-9-209(a) and other adoption provisions. Rachael cites four cases in support'of her argument. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992); In the Matter of the Adoption of Parsons, 302 Ark. 427, 792 S.W.2d 681 (1990); Dale v. Franklin, 20 Ark. App. 98, 733 S.W.2d 747 (1987); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980). These cases, however, are factually different from the situation before us now since those cases involved persons who were not shown to have executed a consent, had timely withdrawn the consent or the person successfully showed the probate court had entered its interlocutory adoption decree before the ten-day withdrawal period had expired. The holdings in those cases are consistent with Ark. Code Ann. § 9-9-206 (Repl. 1993) which requires a written consent before an adoption can be granted and with § 9-9-212(a) which further provides that no orders of adoption, interlocutory or final, may be entered prior to the ten-day period of withdrawal. In this same vein, this court has held that the jurisdiction of the probate court to order an adoption depends upon the consent of the person legally authorized to represent the minor. Swaffar, 309 Ark. 73, 827 S.W.2d 140. Here, unlike the cases cited by Rachael, the record supports the trial judge’s ruling that Rachael’s consent was given. And, while Rachael argues otherwise, the record also reflects that the trial court entered its adoption decree thirteen days after she executed her consent — three days after the ten-day withdrawal period had expired. In signing the consent, Rachael also verified she knew she had only ten days to revoke her consent. Clearly, the trial court had Rachael’s written consent and jurisdiction of the case when it entered its adoption decree.

Rachael complains that the adoption statutes provide that she was entitled to a new hearing after the December 10 hearing and after the adoptive parents filed their adoption petition on December 13. See § § 9-9-212 and 9-9-214(c). She also argues her consent failed to contain the name and address of the probate clerk whom Rachael should file with when withdrawing her consent. See § 9-9-209(b)(1) and (2). Regarding Rachael’s complaint that a second hearing should have been held, the probate court certainly had authority to excuse the parties’ appearance under § 9-9-214. And as to any omission of the clerk’s name and address from the consent, Rachael obviously suffered no prejudice in this respect since she never attempted to withdraw her consent until long after the ten-day withdrawal period had expired. In any event, Rachael’s complaints do not involve jurisdictional matters like that involving the execution of Rachael’s consent as discussed above.

Rachael’s argument seems to suggest that any noncompliance with the adoption code, however slight, would prohibit a probate court’s entry of an adoption decree. Such suggestion by its very nature would extend Arkansas’s settled rule so as to permit an adoption order to be set aside for a reason other than fraud, duress, or intimidation. Certainly, no statute is cited to support this idea and our case law, particularly this court’s decision in Pierce, disabuses us of any such notion. There, the natural parent’s argument to set aside the interlocutory decree was based solely upon her contention that Ark. Stat. Ann. § 56-213 (Supp. 1981) [now Ark. Code Ann. § 9-9-213 (Repl. 1993)] had not been complied with since the child had not lived in the adoptive parents’ home for six months. This court rejected the natural mother’s request to revoke her consent for this statutory noncompliance, stating her consent could only be withdrawn upon showing that fraud, duress, or intimidation had been practiced.

In the present case, we hold the record supports the trial judge’s findings that Rachael’s ten-day period for withdrawing her consent had been explained to and afforded her before the adoption decree was entered. Furthermore, as was the situation in Pierce, the failure, if any, of strict compliance with the provisions argued by Rachael here are simply insufficient grounds to set aside the trial court’s decree.

Arkansas adoption statutes ensure adoption decrees obtained under the law possess that necessary and required finality so that an adoptive parent is not freed of the parental obligations he or she has willingly undertaken. See Pham v. Truong, 291 Ark. 442, 725 S.W.2d 569 (1987). This finality and stability to be given adoption decrees is further reflected by Ark. Code Ann. § 9-9-216(a) (Repl. 1993), which provides that, after one year, an adoption decree cannot even be questioned for (1) fraud, (2) misrepresentation, (3) failure to give any required notice, or (4) lack of jurisdiction of the parties or of the subject matter The commentary to the Uniform Revised Adoption Act sets out the importance and reasoning in keeping adoption orders intact by providing that “[t]he policy of stability in a family relationship, particularly when a young minor is involved, outweighs the possible loss to a person whose rights are cut off through fraud and ignorance.” See Unif. Adoption Act § 15, 9 U.L.A. 62 (1988), which is comparable to § 9-9-216 of the Arkansas Adoption Act.

In conclusion, we note that the adoptive parents now have had custody of the infant involved here for two years and four months. No fraud or duress was employed in obtaining Rachael’s consent or custody of her child. To the contrary, Rachael was fully informed by the probate judge that she had only ten days within which she could withdraw her consent. For whatever reason, she waited nearly three months to withdraw it. To set side the trial court’s decree on the grounds Rachael asserts would seriously undermine the stability and finality lawfully intended for adoption decrees once signed and entered. For the reasons discussed, we affirm the probate judge’s decision.

Dudley, Newbern and Brown JJ., dissent.

Robert H. Dudley, Justice,

dissenting. A probate court granted an interlocutory decree of adoption. Eighty-seven days later the biological mother moved to set aside the decree. The probate court denied the motion. The biological mother appeals. The court of appeals certified the case to this court. The majority opinion affirms the ruling of the probate court. I would reverse.

In October 1991, about a month before her child was due, Rachael Martin, nineteen years old and single, asked her brother, Greg Martin, and his wife, Alice, if they wished to adopt her child when it was born. Greg and Alice responded affirmatively. Soon afterwards, the three, along with Rachael’s mother, discussed the matter with an attorney. The baby was born on November 25, 1991, and appellees Greg and Alice Martin immediately took custody of the child. On December 6, 1991, Greg, Alice, and Rachael met with the attorney in his office in Osceola and employed him to represent them in the adoption.

On the morning of December 10, 1991, the parties met the attorney at the courthouse in Blytheville, and, in the hallway of the courthouse, Rachael signed a consent to adoption. Neither the consent to adoption nor the petition for adoption had been filed, but the attorney asked Probate Judge Ralph Wilson, Jr. to hear the matter. The parties and the baby were present, and a hearing was held that morning. Judge Wilson recognized there were irregularities because he refused to sign a precedent submitted at the conclusion of the hearing. There was testimony that the judge requested that the attorney “redo the papers.” The consent and petition for adoption were not filed until three days later, on December 13.

On December 20, or ten days after the hearing on the adoption, the attorney delivered a precedent for an interlocutory decree of adoption to Judge Wilson’s chambers in Osceola. Judge Wilson did not grant the order at that time, but instead waited until December 23, which was ten days after the consent had been filed, and entered the decree.

The consent did not state that Rachael could withdraw her consent by filing an affidavit with the Probate Clerk of the Chickasawba District of Mississippi County. Rachael testified that about a month after the decree had been signed she told her brother she wanted her child back. In March 1992, she filed the petition to set aside the interlocutory decree of adoption. Probate Judge Rice Van Ausdall heard the petition and declined to set aside the decree. The attorney originally employed to represent the parties in the adoption does not represent either side in this appeal. The various components that comprise the law of adoption require reversal in my opinion.

I. Rules of Construction

The seminal adoption case in this State is Morris v. Dooley, 59 Ark. 483, 28 S.W. 30 (1894), a case in which the title to land depended on the validity of the adoption decree. In a collateral attack on the adoption decree, Morris contended that Dooley’s adoption was void because the decree of adoption failed to recite that Dooley, at the time of adoption, was a resident of the county in which the decree was granted. The trial court upheld the adoption decree. In reversing we made three landmark holdings. First, we stated that the probate court was a court of limited jurisdiction and had only such jurisdiction as conferred by statutes. As part of this holding, we stated that the orders of a court of limited jurisdiction do not enjoy a presumption of regularity, as do the orders of a court of general jurisdiction. Consequently, all jurisdictional facts must be recited in a final adoption decree or else it is void, and, upon collateral attack, the jurisdictional facts cannot be supplied in the subsequent proceeding. Second, we held that, since the probate court is a court of limited jurisdiction and its only authority comes from statute, it has no authority to hear an adoption matter other than in the manner set out in the adoption statute. Adoption is not mentioned in our state constitution. Third, we held that adoption was unknown to common law and exists only as a special proceeding, and, therefore, the adoption statutes must be strictly construed.

At the time, this court was composed of a chief justice and four associate justices. The vote was three to two. Justice Rid-dick wrote a strong dissenting opinion in which Chief Justice Bunn concurred, but the majority opinion has consistently been followed.

II. Collateral Attack

A second important case is Minetree v. Minetree, 181 Ark. 111, 26 S.W.2d 101 (1930). Again, the case involved title to land and a collateral attack on an adoption decree. The infant’s mother was deceased, and the decree reflected that the father was a resident of Mississippi County and that the child lived with the father. However, Mississippi County has two county seats: Blytheville is the county seat of the Chickasawba District, and Osceola is the county seat of the Osceola District. We held the decree was void because the decree did not reflect that either the father or the child lived in the Chickasawba District of Mississippi County.

By the time of Minetree, 1930, this court had seven members, and the vote was four to three. Justice Frank G. Smith wrote a moving dissent in which he urged, in part, that substantial compliance with the statutes should be sufficient in order to give effect to the legislative intent, but the majority opinion has consistently been followed in cases involving jurisdictional recitations. For example, in Ozment v. Mann, 235 Ark. 901, 903, 363 S.W.2d 129, 130-31 (1962), a case in which neither the petition nor the order recited the residence of the boys to be adopted, this court wrote: “[W]e have repeatedly held that an adoption order is void if it fails to recite such essential jurisdictional facts. Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623.” In Poe v. Case, 263 Ark. 488, 490, 565 S.W.2d 612, 613 (1978), another collateral attack case, we wrote:

The probate court is a court of special and limited jurisdiction, having only such jurisdiction and powers as are conferred by the constitution or by statute, or necessarily incident to the exercise of the jurisdiction and powers specifically granted. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810. There is no mention of adoption, child custody or visitation rights in the Arkansas Constitution. Jurisdiction of adoption proceedings has been vested in the probate court by statute. Adoption proceedings were unknown to the common law, so they are governed entirely by statute. Morris v. Pendergrass’s Admr., 59 Ark. 483, 28 S.W. 30. See also, Spencer v. Franks, 173 Md. 73, 195 A. 306, 114 ALR 263 (1937).

III. Direct Attack

Cases involving direct attack involve a different standard. On direct attack, statutory provisions involving the adoption of minors are to be strictly construed and applied. In the case of In re Adoption of Parsons, 302 Ark. 427, 432, 791 S.W.2d 681, 683-84 (1990), we wrote:

We reaffirmed our position of giving careful protection to a natural parent’s rights in In The Matter of the Adoption of Glover, 288 Ark. 59, 702 S.W.2d 12 (1986) (citing Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953) (quoting In re Cordy, 169 Cal. 157, 146 P. 532 (1914))):
... the power of the court in adoption proceedings to deprive a parent of her child, being in derogation of her natural right to it, and being a special power conferred by the statute, such statute should be strictly construed; that ‘the law is solicitous toward maintaining the integrity of the natural relation of parent and child; and in adversary proceedings in adoption, where the absolute severance of that relation is sought, without the consent and against the protest of the parent, the inclination of the courts, as the law contemplates it should be, is in favor of maintaining the natural relation. .. . Every intendment should have been [in] favor of the claim of the mother under the evidence, and if the statute was open to construction and interpretation it should be construed in support of the right of the natural parent.’

We have frequently written that there must be strict compliance with the statutory requirements for the petition, but we have not been unreasonable in finding that compliance. In A & B v.C & D, 239 Ark. 406, 390 S.W.2d 116, cert, denied, 382 U.S. 926 (1965), we used the words “substantial compliance” in discussing a direct attack, but, in reality, we held there was full compliance with the statute. The applicable paragraph is as follows:

Finally, it is urged that the consent to adoption was not properly executed. Appellants point out that the adoption statute requires a written consent, verified by affidavit, and they assert that Mrs. Ward only witnessed and acknowledged B’s signature. It is true that the evidence does not reflect that B held up her hand while Mrs. Ward recited a formal oath, but we. think there was substantial compliance with the statutory requirement. Mrs. Ward was present in the room; Mrs. Ward did see B sign the consent; Mrs. Ward did hear the explanation given B by the attorney representing C and D, and it is obvious that this appellant executed the instrument with the full intent to do that which is required by the statute. Ark. Stat. Ann. § 28-206 (Repl. 1962) provides:
“Every affidavit shall be subscribed by the affiant, and the certificate of the officer'before whom it is made shall be written separately, following the signature of the affiant.”

Id. at 413-14, 390 S.W.2d at 120.

Likewise, in Taylor v. Collins, 172 Ark: 541, 289 S.W.2d 466 (1927), we said compliance with the statute was “mandatory” and that there was “substantial compliance” with it. The court of appeals, in Arkansas Department of Human Services v. Couch, 38 Ark. App. 165, 832 S.W.2d 265 (1992), adopted our language from Taylor v. Collins. However, we have never intended to vary our requirement that on direct appeal there be strict compliance because, as we have often written, adoption statutes are in derogation of the common law and must be strictly construed. See Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992) and cases cited therein. This is a case of the direct appeal of an adoption decree.

IV. The Difference Between the Two Kinds of Appeal

In Taylor v. Collins, 172 Ark. 541, 289 S.W.466 (1927), we explained the difference between the standards for collateral attack and direct appeal. In that case, the petition for adoption alleged that the child was a resident of the county, but his name was unknown and could not be ascertained. Thus, it was impossible to comply with that part of the statute that required the name of the child be set out in the petition. We explained that this might constitute error on direct appeal, but not on collateral attack because, once jurisdiction has been established, regularity is presumed.

Another case setting out the difference in the proceedings is Avery v. Avery, 160 Ark. 375, 255 S.W. 18 (1923). In that case, we held that, unless the jurisdictional facts appear in the record, an adoption is void because jurisdiction is never presumed for a court of limited jurisdiction. However, if the jurisdictional facts do appear, the adoption is valid, and the jurisdictional facts recited cannot be attacked in a collateral proceeding. We explained that once jurisdiction is shown, the proceedings are presumed to be regular, but again wrote that there is a difference between collateral attack and direct appeal as follows:

[“JAppellant contends that the order is void and subject to collateral attack because it does not recite that it was shown by two witnesses that the residence of the father was unknown. But the jurisdiction of the court did not, in our opinion, depend on such evidence, nor was it necessary to make such a recital in the record. Making the order of adoption without such proof would be error, and might be ground to set such order of adoption aside, on petition of the father of the adopted child, but neither D.L. Coleman, on whose petition the order of adoption was made, nor any one claiming through him, as plaintiff does, would be allowed to object to the judgment on that ground.”

Id. at 384, 255 S.W. at 21 (quoting Coleman v. Coleman, 81 Ark. 7, 12 (1906)).

V. Subsequent Legislative Provisions

The General Assembly recognized a need to provide some protection to adoptive parents and adoptive children, who had long been united, from separation. As a result, a two-year statute of limitations was passed in 1949. Although that statute has now been repealed, we likened it to a two-year statute of adverse possession of a child held under a court order intended to be an order of adoption. Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950). A similar statute of limitations exists today as part of the Revised Uniform Adoption Act. That code section provides in part:

[U]pon the expiration of one (1) year after an adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor or, in the case of the adoption of an adult, the adult had no knowledge of the decree within the one-year period.

Ark. Code Ann. § 9-9-216(b) (Repl. 1993) (emphasis supplied).

The court of appeals, in discussing a comparable predecessor statute providing a one-year limitation, wrote: “This statute which is couched in negative language gives rise to a corollary. For one year following the adoption decree, the adoption may be challenged by any person with an interest.” Hensley v. Wist, 270 Ark. 1004, 1006, 607 S.W.2d 80, 82 (Ark. App. 1980) (emphasis supplied), overruled on other grounds by Wilson v. Wallace, 274 Ark. 48, 622 S.W.2d 164 (1981).

Another part of the Revised Uniform Adoption Act provides that “A consent to adoption cannot be withdrawn after the entry of a decree of adoption.” Ark. Code Ann. § 9-9-209(a) (Repl. 1993). This is the statute upon which the majority opinion relies in affirming the case at bar.

In our first case construing this provision, we reversed the ruling of a probate court that had allowed a consent to be withdrawn after the entry of an adoption decree. However, the consent was entered in compliance with the statutes providing the manner for biological parents to consent to adoption, and we implied that the statute presupposes a valid form of consent. We wrote: “In making this ruling we do not imply that consent could not be withdrawn after an interlocutory order upon a proper showing of fraud, duress or intimidation.” McCluskey v. Kerlen, 278 Ark. 338, 341, 645 S.W.2d 948, 949 (1983). We cited an Oklahoma case, In Re: Adoption of Graves, 481 P.2d 136 (Okl. 1971), as authority for our statement. Our dictum was eminently correct because the statute provides that a consent to adoption cannot be withdrawn after a decree of adoption has been entered, and the statute assumes a consent entered in accordance with the applicable adoption statutes. The cited Oklahoma case fully supports this position. In that case the biological parents sought to set aside an adoption decree and contended that their consent was the result of fraud, coercion, and intimidation. The Oklahoma trial court held that, under a statute with the same provision as § 9-9-209(a), it had no authority to declare the consent invalid after the decree of adoption was entered. The natural parents appealed. The Oklahoma appellate court ruled that the fact that the Uniform Adoption Act contains both a statute of limitations and the statute barring the withdrawal of a consent after a decree has been entered means that some actions can be brought after the decree has been entered, as long as they are brought before the one-year statute of limitations has run. The same reasoning applies to the comparable Arkansas statutes. Thus, the statute presupposes a consent executed in accordance with the applicable statutes, and if the statutes are not complied with, an action can be maintained after an adoption has been granted, as long as the statute of limitations has not run. The statute of limitations had not run in the case at bar.

In our second case involving this provision, we affirmed the probate court’s refusal to allow withdrawal of a valid consent after the decree of adoption, and in so doing we relied on our first case interpreting this provision, McClusky, and, in dictum, said, “[I]t is settled that consent to adoption can be withdrawn after an interlocutory order only upon a proper showing of fraud, duress, or intimidation.” Pierce v. Pierce, 279 Ark. 62, 63, 648 S.W.2d 487, 487 (1983). The quoted dictum is the statement relied upon by the majority opinion. It wholly ignores the concept that the statute prohibiting the withdrawal of a consent after an interlocutory order presupposes a consent executed in accordance with the statute.

VI. The Case At Bar

The case at bar is a direct attack on the order refusing to set aside the adoption. The first issue is whether the direct attack may be maintained after the interlocutory decree of adoption was entered. The majority opinion holds that it can not be so attacked. I would hold that the attack could be maintained since the form and manner of execution of the consent did not strictly comply with the statute and the action was not barred by the statute of limitations. As stated, section 9-9-209(a) of the Arkansas Code Annotated of 1987, which provides that a consent cannot be withdrawn after the entry of a decree of adoption, presupposes a valid written consent. The majority opinion holds otherwise. The holding is contrary to overall design of the Revised Uniform Adoption Act and places little or no weight upon the relinquishment of the natural parents’ rights. See In re Adoption of infant Girl Banda, 559 N.E.2d 1373 (Ohio Ct. App. 1988). Here, strict compliance with the statute providing the form of the consent was lacking, and there was very little compliance, certainly not strict compliance, with the statute providing for the form of the petition for adoption. The motion to set aside the interlocutory decree was filed within ninety days of the decree, and obviously within one year of the decree. Thus, the petitioner should be allowed to maintain this action.

A. The Petition

Two instruments were filed by the parties, the petition for adoption and the consent. The statutes applicable to the petition are as follows. Section 9-9-210 of the Arkansas Code Annotated of 1987 requires that a written and verified petition must be filed with the clerk. Section 9-9-212 provides that, after the written petition is filed, the court shall fix a time and place for hearing the petition. Section 9-9-212 additionally provides that before a judge conducts the hearing on a petition, the period in which the consent can be withdrawn must have expired. Section 9-9-209 provides that the consent may be withdrawn within ten calendar days after it is signed. In this case the petition was filed on December 13, but the parties stipulated that the court held the hearing on December 10, three days before the petition was filed. Further, the parties stipulated that Rachael Martin signed the consent on December 10. Thus, the period for Rachael Martin to withdraw the consent had not passed at the time the hearing was held. This amounted to no compliance with the statutory requirements that a written and verified petition be filed with the clerk prior to setting a hearing date, that a written consent be filed with the clerk, and that the court then set a hearing on the petition later than ten calendar days after the consent was signed.

The code further provides that if the period for the withdrawal of the consent has not passed by the time of the court hearing “the court shall dismiss the petition and the child shall be returned to the person or entity having custody of the child prior to the filing of the petition.” Ark.. Code Ann. § 9-9-214(c) & (d) (Repl. 1993) (emphasis added). Rather than dismiss the petition as the statute provides, the trial court granted the interlocutory decree of adoption. This was in direct conflict with the statutory mandate. Consequently, the probate court erred in refusing to set aside the interlocutory decree of adoption that was granted in violation of applicable statutory directives.

B. The Consent

The statute setting out the requirements for a valid consent was not followed. Both this court and the court of appeals have consistently required strict compliance with the statute providing for a consent to adoption. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (1980); Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986); Dodson v. Donaldson, 10 Ark. App. 64, 661 S.W.2d 425 (1983); Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983). The reason is the public policy of this state is solicitous toward maintaining the integrity of the natural relationship between parent and child, and a severance of that relationship should be allowed only under carefully defined circumstances. Roberts, 269 Ark. at 919, 597 S.W.2d at 841.

Here, the written consent did not inform Rachael that she could withdraw her consent by filing an affidavit with the Probate Clerk of the Chickasawba District of Mississippi County, and it did not state the address of the clerk. The applicable code sections provide:

A consent to adopt may be withdrawn within ten (10) calendar days after it is signed or the child is born, whichever is later, by filing an affidavit with the clerk of the probate court in the county designated by the consent as the county in which the adoption petition will be filed....
The consent shall state that the person has the right of withdrawal of consent and shall provide the address of the probate court clerk of the county in which the adoption will be filed. . . .

Ark. Code Ann. §§ 9-9-209(b)(l) & (2) (Repl. 1993).

In addition, section 9-9-208(a)(3) provides: “The required consent to adoption shall be executed in the following manner: . .. (3) . . . in the presence of the court or in the presence of a person authorized to take acknowledgements.” Ark. Code Ann. § 9-9-208(a)(3) (Repl. 1993) (emphasis added). The consent was not signed in front of the judge. Joyce Howard, the lawyer’s secretary, and a notary public, attested that Rachael signed the consent before her on December 10, 1991. She testified that Rachael signed the consent in the lawyer’s office on the 10th, just before Rachael and the adoptive parents, Greg and Alice Martin, went to the courthouse for the hearing. Racahel, as well as Greg and Alice Martin, testified that the petition and the consent were both signed at the courthouse. The trial court found that Rachael signed the consent in the hallway of the courthouse. All of the parties agree that Joyce Howard was not present at the courthouse when Rachael signed the consent. In fact, the adoptive mother, Alice Martin, testified that neither the consent nor the petition had been acknowledged at the time of the hearing before the probate court. The trial court’s finding that the documents were signed in the hallway of the courthouse is based upon substantial evidence. Thus, the consent was not executed in the presence of either the court or a person authorized to take acknowledgements and, as a result, was not executed in compliance with the applicable statute.

The majority opinion holds that it does not matter that there was not strict compliance with the statutory provisions for a consent. The effect is to abandon our long-established public policy that has been solicitous toward maintaining the integrity of the relationship between biological parent and child, and to allow severance of that relationship under less than the statutorily mandated procedures. I dissent.

Newbern and Brown, JJ., join in this dissent.

Robert L. Brown, Justice, dissenting.

I join in Justice Dudley’s dissent but write to highlight the public policy behind the ten-day wait that must occur after the natural mother consents to adoption and before the hearing on the adoption petition can take place.

Our statutes require that ten-day period:

(b) (1) A consent to adopt may be withdrawn within ten (10) calendar days after it is signed or the child is born, whichever is later, by filing an affidavit with the clerk of the probate court in the county designated by the consent as the county in which the adoption, petition will be filed....

Ark. Code Ann. § 9-9-209(b)(l) (1987).

(a) Before any hearing on a petition, the period in which the relinquishment may be withdrawn under § 9-9-220 or in which consent may be withdrawn under § 9-9-209, whichever is applicable, must have expired. . . .

Ark. Code Ann. § 9-9-212 (1987).

(c) If at the conclusion of the hearing the court determines that the required consents have been obtained or excused and the required period for the withdrawal of consent and withdrawal of relinquishment have passed and that the adoption is in the best interest of the individual to be adopted, it may (1) issue a final decree of adoption; or (2) issue an interlocutory decree of adoption ....
(d) If the requirements for a decree under subsection (c) have not been met, the court shall dismiss the petition and the child shall be returned to the person or entity having custody of the child prior to the filing of the petition.

Ark. Code Ann. § 9-9-214(c) & (d) (1987).

An essential plank of the Adoption Code is the ten-day period during which time the natural mother can change her mind and renege on the adoption of her child. The obvious justification for the wait is that the decision is one of monumental importance that must be made coolly and deliberately. To rush pell mell into a hearing before a probate judge with all the inherent pressure and finality that the hearing suggests on the same day of the consent undermines and erodes this policy considerably.

In sum, the mother must have an unobstructed period before the adoption hearing to reconsider her decision, and that did not occur in this instance. We strictly construe and apply our adoption statutes. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992); Norris v. Dunn, 184 Ark. 511, 43 S.W.2d 77 (1931). I accordingly dissent.

Newbern, J., joins. ■

      The consent itself was verified by Rachael and il provided she understood she had the right to withdraw her consent within ten days after execution of the consent.

      We nole that statutory exceptions are provided where consent is not required for certain persons or parents in specific situations described in Ark. Code Ann. § 9-9-207 (Repl. 1993).

      The McClusky case cited above does not reflect why the trial court set aside the interlocutory decree there, but just referenced the consent as “not valid.” This court found the consent valid on appeal, but again, did not present the facts making the consent an issue. The court did reiterate the rule that consent could not be withdrawn after entry of an adoption decree except upon a showing of fraud, duress, or intimidation.

      Of course, this statutory limitation is subject to a party’s having filed a direct appeal from an adoption decree and disposition of the appeal. No such appeal occurred in this case.


author: Donald L. Corbin, Justice.

text:
    William C. HICKSON v. STATE of Arkansas
    CR 93-1212
    875 S.W.2d 492
    Supreme Court of Arkansas
    Opinion delivered May 2, 1994

      Bryant & Henry, by: Barry A. Bryant, for appellant.

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

Appellant, William C. Hick-son, appeals the denial by Miller Circuit Court of his request to be present for the hearing on his motion for order of delivery. Appellant also appeals the subsequent denial of his petition to correct sentence. This case presents another issue as well: the interplay of Ark. R. Crim. P. 37 and Ark. Code Ann. § 16-90-111 (1987) and their conflicting time limitations when one petitions for post-conviction relief. This court has jurisdiction since a sentence of more than thirty years was imposed.

Appellant was convicted of two counts of second degree murder and one count of first degree battery. After the jury returned its verdict, the court asked in counsels’ and defendant’s presence whether there was any reason sentence should not be imposed at that time. Both counsel replied that there was none, though the defendant himself did not reply. Sentence was then imposed.

Subsequently, appellant filed a motion asking to be present when his petition to correct sentence was heard asserting he had this right under the Ark. Const, art. 2, § 10 and Ark. Code Ann. § 16-90-106 (1987). After a hearing on this matter, it was denied. The petition to correct sentence was later denied, the sole issue being whether appellant had been given his right of allocution at trial. This appeal resulted, and we dismiss the appeal as untimely.

The state argues that the petition for correction of sentence was untimely. Specifically, all parties including the court appeared to have proceeded under the statutory allowance of correction of sentence which permits 120 days within which to file a petition. Appellant filed his petition citing this statutory rule. The state argues the corresponding rule in Ark. R. Crim. R 37.2(c) requires this petition to be submitted within sixty days of the affirming mandate. The state submits that the procedural rule is paramount and should act as a bar to this petition, citing State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990). We agree. The pertinent wording in subsection (b) of Rule 37.2 makes this clear:

All grounds for post-conviction relief from a sentence imposed by a circuit court, including claims that a sentence is illegal or was illegally imposed, must be raised in a petition under this rule.

Statutes are given deference only to the extent that they are compatible with our rules, and conflicts which compromise these rules are resolved with our rules remaining supreme. Sypult, 304 Ark. 5, 800 S.W.2d 402. This rule of criminal procedure is therefore controlling. Appellant’s petition for post-conviction relief is untimely. Since the petition is untimely, appellant’s other argument regarding his presence at the hearing is moot.

Appeal dismissed.

Hays, J., concurs.