text:
    Willie Charles SUGGS v. STATE of Arkansas
    CR 94-194
    879 S.W.2d 428
    Supreme Court of Arkansas
    Opinion delivered July 11, 1994
    [Supplemental Opinion on Denial of Rehearing September 19, 1994.]

      Donald A. Forest, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst.-Att’y Gen., for appellee.
   Steele Hays, Justice.

Willie Charles Suggs files this appeal from a judgment of conviction for first degree murder. Suggs’s primary point for reversal is the trial court’s refusal to allow him to recall two witnesses for cross-examination. Because of certain developments during the trial, we believe the argument must be sustained and therefore we reverse and remand.

On Sunday, December 13, 1992, Debbie Ann McKenzie was found murdered in her apartment. She died of multiple stab wounds. Her two sons, Anthony, age six, and Jamal, age four, were in the apartment. A neighbor, Karla Nolan, was the first to enter the apartment, and the boys told her, “Charles did it.” They told the same thing to David Bassford, the first police officer on the scene. The exact time of death was not determined, but approximately thirty hours elapsed between the homicide and the discovery of the body.

The boys were taken to the police station and, with their grandmother present, shown a photo lineup that included a picture of appellant. Both boys picked out appellant as the person who had “hurt” their mother. Appellant was charged with McKenzie’s murder.

The state presented the trial testimony by the neighbor and Officer Bassford as to what the boys told them and also presented testimony from the officer who conducted the photo lineup. He testified the boys identified appellant from the photographs. Both boys were held competent and both testified. Appellant was shown to have been in the area at the time of the victim’s death and also that he had had a relationship with the victim. The victim’s brother testified that about a month before the murder his sister had called him, frightened and upset. She told him appellant was kicking on her door and trying to break in. She asked her brother to come over and when he arrived appellant had gone.

The jury found appellant guilty of first degree murder and sentenced him to life imprisonment.

When the photo lineup was shown to the boys the session was recorded on audio tape. The photospread consisted of six photographs-the appellant and five other individuals. Both boys identified appellant. However, some ambiguities arise from the questioning and the responses. At one point, after Anthony had picked out the appellant, an unidentified voice states, “I don’t see Charles anywhere.” At another point, Jamal mentions two other individuals, Mike and Todd, or Toad, with no further explanation.

At the pretrial hearing appellant sought to suppress any evidence of the photo lineup as unduly suggestive. The tape and the transcription of the tape were introduced at that hearing and the trial court held the lineup was not unduly suggestive and denied appellant’s motion to suppress. Appellant also wanted to call the boys at the hearing and have them again attempt to pick out appellant from the lineup. The trial court refused that request but stated at the end of the hearing:

The excited utterances plus the identification of the defendant through his photograph is not unduly suggestive, certainly, and does not create any great probability of misidentification. The fact-finder will be permitted to see,. hear and view the identification procedure and give the identification such credibility or weight that they deem it entitled to. '

During the state’s case-in-chief, the boys testified but the defense did not cross-examine them on the photospread. When the officer who conducted the photospread testified, appellant attempted to introduce the tape through him and asked that it be played for the jury. The state objected to the admission of either the tape or the transcription on the grounds of hearsay. The trial court sustained the state’s objection and refused to allow the tape to be played. Appellant then argued that he should be entitled to recall the boys. The trial court informed appellant that he had already had a full opportunity to cross-examine them and the trial court was not going to allow the defense to bring them back “piecemeal.” When appellant began his case, he was again refused permission to recall the boys.

On appeal appellant argues he relied on the trial court’s statement at the suppression hearing that the tape of the lineup would be played for the jury. Therefore, he argues, he did not cross-examine the boys on any statements they had made during the lineup because he expected the inconsistencies to be shown when the tape was played.

An analogous situation arose in Jackson v. State, 249 Ark. 653, 460 S.W.2d 319 (1970). The question was whether the defendant waived his right to an opening statement. Ordinarily the defendant is required to make his opening statement immediately after the state’s case and failure to do so is deemed a waiver. Perryman v. State, 242 Ark. 461, 414 S.W.2d 91 (1967). In Jackson, the appellant’s attorney stated he would like to reserve his opening statement until the closing of the state’s case. There was no objection by the state and the trial judge assented. At the close of the state’s case the defendant attempted to make his opening statement but the trial court ruled he had waived his right by not doing so immediately following the state’s opening statement. We said:

Even though a defendant in a criminal case may waive this right, no waiver of a fundamental right should be effective unless it is knowingly made. We do not feel that it could be said that a defendant knowingly waived his right to make his opening statement after having been assured by the trial court, without objection by the prosecution, that he could reserve that statement until after presentation of the state’s evidence in chief. . . . We feel that the failure of the state to object when the defendant’s request was made was at least a silent acquiescence in the procedure proposed. [Emphasis in original.]

We think that rationale applies in this case. Here the defense did not waive its right to thoroughly cross-examine the two young witnesses because it was not a knowing waiver, i.e., appellant decided not to cross-examine the boys concerning the photo lineup, because the trial court had stated the tape would be played to the jury. And, as in Jackson, the state did not object at the time the trial court announced its intent to play the tape at trial, but waited until after the boys had been cross-examined by the defense and were off the stand.

Nor can we say the matter was without prejudice. The boys’ testimony was critical to the prosecution’s case and it was therefore essential that the defense have the opportunity to fully develop its cross-examination of the two witnesses on whom the state’s case largely rested.

In Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990), we spoke of the importance of cross-examination under the confrontation clause of the United States Constitution and art. 2, § 10 of the Arkansas Constitution:

The right of confrontation provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination. Delaware v. Fensterer, 474 U.S. 15 (1985); Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987). See also Miller v. State, 269 Ark. 409, 601 S.W.2d 845 (1980). In fact, “[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Delaware v. Van Arsdall, 475 U.S. 673 (1986); Davis v. Alaska, 415 U.S. 308 (1974); Winfrey v. State, supra. [Our emphasis.]

We turn to other points for the guidance of the trial court on remand. Appellant contends the jury should be allowed to hear the tape of the photo lineup and the issue could arise when the case is retried. Appellant argues the tape is the' “best evidence” as to what occurred. However, the best evidence rule presupposes the admissibility of the original item of evidence, for which a substituted copy or facsimile is being offered. The rule has no pertinence here.

Whether the recording should be played in whole or in part for the jury is discretionary with the trial court, depending on audibility and trustworthiness, etc. Loy v. State, 310 Ark. 33, 832 S.W.2d 577 (1992); Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990). Where the use of such evidence'rests 'on the discretion of the trial court and is dependent on a variety of factors we do not ordinarily prejudge its use. Obviously, portions may be useable for purposes of impeachment, with a limiting instruction. See Ford v. State, 296 Ark. 6, 753 S.W.2d 258 (1988); Bowden v. State, 297 Ark. 160, 761 S.W.2d 148,(1988).

Appellant assigns error to a witness for the state, Donald E. Smith, testifying as an expert, being allowed to speculate that a hair or hairs found on appellant’s shoe came from the victim. Having first testified that he could not exclude the hair fragments from the victim, he later (on second re-direct) expressed his opinion that the hairs “originated from the victim, Debbie McKenzie.” Appellant moved for a mistrial or to strike the testimony. Whether this discrepancy will recur on retrial seems unlikely.

During the suppression hearing appellant asked permission to call Anthony and Jamal McKenzie to see if they could identify appellant from the six photographs of the photo lineup. The trial court refused on the ground that whether the boys could pick the same photograph a year later was irrelevant. That was and is a matter of the trial court’s discretion.

Nor do we think it was error for the trial court to find Anthony and Jamal McKenzie competent to testify as witnesses for the state. The trial court went into the matter thoroughly at a pretrial hearing. The two boys demonstrated an ability, given the limitations of their ages, to give information responsively, to understand the difference between truth and falsehood and the con-, sequences of telling a lie. They promised truthfulness. We must, of necessity, look primarily to the trial court in this regard and no abuse was shown. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986).

Another contention concerns statements by the children to Karla Nolan, a neighbor and family friend, and David Bassford, the first police officer to arrive at the scene. The boys told them that “Charles did it” and “Charles hurt their mother.” Over appellant’s objection the statements were admitted as excited utterances. A.R.E. Rule 803(2). Appellant maintains the children “were not upset,” “were not crying” and “were not scared.” Even if there were no direct proof to the contrary, it would be. inconceivable that a four and six-year-old could remain some twenty-four to thirty hours alone with the body of their mother, dead on the living room floor from 144 knife wounds and regard their immediate account as unexcited, whatever the manifestations. But it need not rest on conjecture, as Ms. Nolan said that when she finally prevailed on the boys to open the door, and saw the broken furniture and body, the boys “hollered Charles did it.” Officer Bassford described the children as being “in an emotional state. The first thing they told me was Charlie or Charles hurt their mother. They were in tears. You could tell they were upset. . .scared.”

Donald A. Forrest, for appellant.

Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.

Appellants pro se motion for a dismissal of charges pursuant to A.R.Cr.P. Rule 28, speedy trial, is patently meritless. The offense was alleged to have occurred on December 3, 1992, and appellant’s trial occurred on November 8, 1993.

Reversed and remanded.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING SEPTEMBER 19, 1994

Steele Hays, Justice. By petition for rehearing appellant asks that we reverse an order revoking his probation in a separate case — Crittenden Circuit No. CR91-246. Appellant had pled guilty to burglary and theft-of property committed on March 5, 1991. He was placed on probation for ten years conditioned on his good behavior and law abidance. After the murder of Debbie Ann McKenzie the state moved to revoke probation.

The revocation issue was submitted in a bench trial while the jury was deliberating on the murder charge (Crittenden Circuit No. CR92-1004). The trial judge concluded that the preponderance of the evidence established that appellant purposefully caused the death of Debbie Ann McKenzie, revoking appellant’s probation and sentencing him to twenty years in the Department of Correction. The only objections-in those proceedings were that the revocation hearing was not held within sixty days and that none of the witnesses purporting to place appellant at the murder scene had identified him in the courtroom. Neither point is argued on appeal, nor was the finding of the trial court clearly erroneous. Rehearing denied. .


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Sharlene WILSON v. STATE of Arkansas
    CR 94-160
    878 S.W.2d 755
    Supreme Court of Arkansas
    Opinion delivered July 11, 1994

      John Wesley Hall, Jr., P.C., for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Sharlene Wilson was tried and convicted of possession of marijuana, delivery of marijuana, delivery of methamphetamine, and possession of drug paraphernalia. The jury sentenced her to a total of thirty-one years imprisonment in the Arkansas Department of Correction and one year imprisonment in the Hot Spring County Jail. She was fined a total of $11,000. On appeal Ms. Wilson charges the trial court with two errors: (1) denying her motion tó dismiss based upon outrageous police conduct and (2) denying her motion to suppress the fruits of the search of her residence. Finding no error, we affirm the judgment of conviction.

Ms. Wilson was incarcerated in the Malvern City Jail awaiting trial. She was represented by counsel at the time. Officers with the Seventh Judicial District Drug Task Force wired an informant and sent her into the appellant’s cell. After a brief conversation with the informant, Ms. Wilson discovered the transmitter. At no time did Ms. Wilson incriminate herself or supply any information pertinent to her case.

Officer Roger Walls testified he had information that Bryson Jacobs, who had been living with Ms. Wilson, was planning an escape from the Hot Spring County Jail. According to Walls’s testimony, the informant was sent into the cell to uncover the plans for escape. However, other officers testified to a dual purpose in the use of the informant: to obtain information which could be used against Ms. Wilson and to obtain information regarding the escape.

The appellant moved to dismiss the charges against her based upon a Sixth Amendment violation. Ms. Wilson contends the outrageous conduct of the officers warranted the extreme remedy of dismissal of the charges. Because we find that no prejudice occurred, we will assume, arguendo, that the Sixth Amendment was violated under the circumstances of this case.

In United States v. Morrison, 449 U.S. 361 (1981), the United States Supreme Court held that “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the [Sixth Amendment] violation may have been deliberate.” (Emphasis supplied.) Factually, Ms. Morrison had retained counsel to represent her in the pending criminal proceedings. Thereafter, two agents of the Drug Enforcement Agency, aware that she had been indicted and had retained counsel, sought to obtain her cooperation in a related investigation. They met with her without the knowledge or permission of her counsel. The agents told her it would be to her advantage if she cooperated but she would face a stiff jail term if she did not. At no time did Ms. Morrison incriminate herself or supply any information pertinent to her case. Ms. Morrison moved to dismiss the indictment. In determining that dismissal of the indictment was not appropriate, the Court noted:

[W]hen before trial but after the institution of adversary proceedings', the prosecution has improperly obtained incriminating information from the defendant in the absence of his counsel, the remedy characteristically imposed is not to dismiss the indictment but to suppress the evidence or to order a new trial if the evidence has been wrongfully admitted and the defendant convicted. In addition, certain violations of the right to counsel may be disregarded as harmless error. [Citations omitted.]

Similarly, in Massiah v. United States, 377 U.S. 201 (1964), the Court held that where a Sixth Amendment violation has occurred the defendant’s own incriminating statements could not constitutionally be used by the prosecution as evidence against him at his trial. Once again, Mr. Massiah had retained counsel. While he was free on bail a federal agent succeeded by surreptitious means in listening to incriminating statements made by him. At Mr. Massiah’s trial these incriminating statements were brought before the jury. The Court held that Mr. Massiah was denied the basic protections guaranteed by the Sixth Amendment when such evidence was used against him at his trial.

Ms. Wilson acknowledges the holdings in Morrison and Massiah; however, she submits we should reverse and dismiss under Ark. Const. Art. 2, § 8 and § 10. We find the cited provisions of the Arkansas Constitution do not provide for such relief. Further, the appellant fails to allege she suffered any prejudice as a result of the surreptitious actions. We have repeatedly held that an appellant must show prejudice, because this Court will not reverse for harmless error. Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992).

It is troubling to find in this record a clear implication that public officials charged with enforcement of law would, in concert pursue a course calculated to circumvent fundamental provisions thereof. Not the least of our concerns is the fact that had the plan succeeded, the prosecution of these offenses would have been seriously jeopardized.

Turning to the second point, officers with the Saline County Sheriff’s Office and the Seventh Judicial District Drug Task Force executed a search warrant at the home of the appellant. Officer Henry Efird’s affidavit in support of the warrant recited that a confidential informant had made purchases of marijuana and methamphetamine from the appellant at the residence. Further, Officer Efird observed Ms. Wilson leave her residence and proceed to a meeting with the informant. At that time, the officer observed a transaction between Ms. Wilson and the informant.

During the search of Ms. Wilson’s home, the officers discovered an amount of marijuana, an amount of methamphetamine, and drug paraphernalia. The appellant moved to suppress the evidence seized in the search on the ground that the affidavit contained omissions of fact which were material to the finding of probable cause and on the ground that the officers failed to “knock and announce.”

At the suppression hearing, Ms. Wilson contended three exculpatory items were omitted from the affidavit. First, the affidavit failed to disclose that the informant and her husband had been arrested and that she had agreed to cooperate in order to help herself and her husband. Second, the affidavit failed to disclose that Ms. Wilson declined to sell drugs to the informant on prior occasions. Third, the affidavit failed to disclose that when a buy allegedly occurred, the drugs did not come directly from Ms. Wilson’s home. Ms. Wilson contends that had these omissions been included in the affidavit it would have undermined the informant’s credibility to the point that probable cause would be lacking. The trial court denied Ms. Wilson’s motion to suppress the evidence.

In reviewing a trial court’s ruling on a motion to suppress, we consider the totality of the circumstances to determine if the trial court’s decision was clearly against the preponderance of the evidence. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). We consider the facts in the light most favorable to the appellee. Id. Under Franks v. Delaware, 438 U.S. 154 (1978), a warrant should be invalidated if a defendant shows by a preponderance of the evidence that: (1) the affidavit contained a false statement which was made knowingly, intentionally, or recklessly by the affiant and (2) the false statement was necessary to a finding of probable cause.

In Pyle, supra, we concluded that even with omissions there must be a knowing intent to deceive, or a reckless disregard of truth. Further, we found the omissions must involve material circumstances which contradict or dispel the incriminating factors in the affidavit. As to the informant’s motive for cooperation in the instant case, such an omission simply does not contradict or dispel the incriminating factors in the affidavit. Also, Officer Efird independently corroborated most of the information supplied by the informant which constitutes “particular facts bearing on the informant’s reliability.” See Ark. R. Crim. P. 13.1. Second, we have specifically recognized that the omission of refusals to sell drugs on other occasions does not amount to deception by negation. Pyle, supra. Finally, applying the Pyle standard, where Ms. Wilson obtained the drugs is immaterial to the incriminating factors in the affidavit.

Even if the omissions were material, probable cause is present in the warrant. Officer Efird stated that he followed Ms. Wilson from her house to a meeting with the informant. Officer Efird observed a drug transaction. Thus, the credibility of the informant is not an issue regarding probable cause. Further, as there was probable cause to believe Ms. Wilson possessed drugs at her residence, where she obtained or manufactured the drugs is irrelevant.

As an additional ground for suppression of the fruits of the search, Ms. Wilson submits the officers executing the search failed to knock and announce their identity before entering the residence. The testimony indicated that the officers entered the home while they were identifying themselves. Ms. Wilson relies upon Miller v. United States, 357 U.S. 301 (1958), as the sole authority for her argument. The appellant contends, based upon Miller, that the Fourth Amendment requires officers to knock and announce prior to entering the residence. However, Miller involved a statute, 18 U.S.C. § 3109, which specified that a law enforcement officer, executing a search warrant, may break open a door only if, “after notice of his authority and purpose,” he is denied admittance. The Fourth Amendment was not mentioned.

There is no authority for Ms. Wilson’s theory that the knock and announce principle is required by the Fourth Amendment. Furthermore, Ark. R. Crim. P. 13.3 outlines the procedure to be followed in the execution of a search warrant, and provides in part:

(e) The executing officer, and other officers accompanying and assisting him, may use such degree of force, short of deadly force, against persons, or to effect entry or to open containers as is reasonably necessary for the successful execution of the search warrant with all practicable safety.

Rule 13.3 does not contain a “knock and announce” rule. See also Dodson v. State, 4 Ark. App. 1, 626 S.W.2d 624 (1982) (Glaze, J., concurring), cert. denied, 457 U.S. 1136 (1982).

In sum, we find no error and affirm the judgment of conviction.


author: David Newbern, Justice.

text:
    Jimmy HIGGINS v. STATE of Arkansas
    CR 94-52
    879 S.W.2d 424
    Supreme Court of Arkansas
    Opinion delivered July 11, 1994

      Bob Keeter, for appellant.

      Winston Bryant, Att’y Gen., by: Pamela Rumpz, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Jimmy Higgins, the appellant, was convicted of two counts of rape. He was sentenced to two 40-year terms of imprisonment to be served consecutively. His first point of appeal is that the Trial Court erred in failing to grant his motion for directed verdict on each count because the State did not prove the date each alleged offense occurred. We decline to address that point because it was not raised at the trial. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). He also contends in his first point of appeal that his motion to dismiss the second count should have been granted due to improperly laid venue. We hold venue was properly laid because there was evidence that the offense described in each count occurred in Polk County,

In his second point, he argues an incriminating statement he gave to a police officer was not given voluntarily and should have been suppressed because he was questioned after invoking his right to counsel. We hold the evidence does not support his contention that he asked for counsel.

Third, he contends the prosecution should have been dismissed because a magistrate who authorized his arrest was improperly appointed. We hold the validity of the appointment of the magistrate is immaterial in the circumstances presented. The judgment is affirmed.

Mr. Higgins was arrested for DWIII on September 26, 1992. Deputy Sheriff Hopper testified that he became involved with Mr. Higgins on August 3, 1992, when he was informed by a Department of Human Services employee that Mr. Higgins’ two sons had given statements alleging that Mr. Higgins had forced them to engage in acts of fellatio. On that date at 6:30 or 7:00 p.m. he went to the jail and informed Mr. Higgins he was under arrest for rape. He read the Miranda warnings and asked if Mr. Higgins would like to make a statement, and Mr. Higgins responded affirmatively. Deputy Hopper took Mr. Higgins to an office where he read an “interrogation rights form,” asking whether each of the rights was understood, and Mr. Higgins initialed each question as it was repeated.

On cross-examination Deputy Hopper said that Mr. Higgins had asked, before the questioning began, “Do you think I need a lawyer?” to which Deputy Hopper replied, “You will have to have one.”

The interrogation lasted from around 7:00 p.m. until 11:40 p.m. A tape recording was made of the last few minutes of the questioning, and it shows that Mr. Higgins admitted to engaging in fellatio with his children in Wickes, the Polk County town where his ex-wife and mother of the children lived. While he remembered that his older son was with him in the car on September 26, 1992, he could not remember any sexual activity with him that evening.

According to Deputy Hopper, the interrogation took so long because the subject was very “delicate” with Mr. Higgins, and they went into great detail about Mr. Higgins’ other homosexual experiences and abuse he had received years ago as a child. The conversation also touched on Mr. Higgins’ alcohol and drug problems and his attempts at suicide. The Deputy testified he took a great deal of time, provided Mr. Higgins with coffee, food, cigarettes, and opportunity to use the bathroom. He denied knowledge that Mr. Higgins had been declared incompetent, a fact to which Mr. Higgins testified. He also denied any coercive measures were used, and specifically denied Mr. Higgins’ allegation that he threatened Mr. Higgins with the prospect of having to speak with another, much meaner officer if Mr. Higgins declined to talk to him.

Other facts will be provided in the course of discussion of the points of appeal.

1. Directed verdict and dismissal motions

These motions were based on improperly laid venue. To begin with, “The State is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.” Ark. Code Ann. § 5-1-111(b). That is so unless the defendant produces evidence to dispute the propriety of, in this case, the venue of the trial. Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986). Mr. Higgins apparently is relying on the testimony of the children to supply the necessary proof. While we have strong doubt whether he has overcome the presumption provided by the statute, we will address the evidence.

a. Count I

Count I alleged that rape occurred on or about July 26, 1992. The motion to dismiss and the motion for directed verdict were based on the contention that there was no showing that the offense occurred in Polk County.

The older son, who was 10 at the time, said he was forced to take his father’s penis in his mouth as they were driving from DeQueen, which is in Sevier County, to Grannis, which is in Polk County. He said, “It was in DeQueen and Grannis. It happened twice that same night.” That statement constitutes sufficient evidence that the offense occurred in Polk County.

b. Count II

Count II alleged that acts of fellatio had occurred between July and December, 1990. In his statement to Deputy Hopper Mr. Higgins referred to one act in Wickes which occurred late in 1990. He contends that his confession, standing alone, is not sufficient to support the finding that it occurred in Polk County. The only authority cited is Ark. Code Ann. § 16-89-450 which has to do with admissibility of confessions generally and is not relevant to this point.

We suspect the citation was meant to be to Ark. Code Ann. § 16-89-111(d) which provides, “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” That is the so called corpus delicti requirement, and we have consistently held that it requires only a showing that the offense occurred and nothing more. Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990); McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984).

The younger son testified that acts of fellatio occurred several years ago at Mr. Higgins’ house in DeQueen and he could not remember if they had occurred any other place. That is enough to show that the offense occurred, and it is hardly the kind of testimony we would require to overcome the presumption that venue was properly laid and the Trial Court had jurisdiction of the offense alleged.

2. Suppression of confession a. Voluntariness

Mr. Higgins contends his confession was not voluntarily given. The only facts he recites as giving rise to a conclusion that he was coerced are the duration of the interrogation and the disputed threat that he would have to talk to a meaner officer if he did not talk with Deputy Hopper.

. The voluntariness of an inculpatory statement by an accused is determined by the Trial Court on the basis of consideration of the totality of the circumstances. Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991); Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991). The Trial Court resolves conflicts in the testimony, and we do not reverse unless the finding is clearly erroneous. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983).

We have been given no reason to hold the decision to admit the statement over Mr. Higgins’ objection was clearly erroneous. A reasonable explanation was given for the lengthy duration of the interview resulting in the confession, and we cannot gainsay the Trial Court’s apparent conclusion that there was no coercion beyond the assumption attendant upon any statement made while an accused is in custody. See Miranda v. Arizona, 384 U.S. 436, (1966).

b. Request for attorney

Mr. Higgins does not contend that he asked to be provided with an attorney. His version of what was said does not differ materially from that of Deputy Hopper. The issue becomes whether the reference to an attorney in his question “Do you think I need an attorney?” was sufficient to require that the interview cease in accordance with the requirement of Edwards v. Arizona, 451 U.S. 477 (1981), and our case of Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989), which applies the rule of the Edwards case.

We have not previously dealt with a situation quite like this one, but we have discussed “equivocal” references by accused persons to the need for counsel at the interrogation stage. In Day v. State, 306 Ark. 520, 816 S.W.2d 852 (1991), Mr. Day had completed a statement and then said to one officer, “Well, before I sign anything, I probably better talk to a lawyer.” Another officer, knowing of the request for counsel, then read the Miranda warnings and had Mr. Day execute a second statement of rights form, after which he told Mr. Day he knew of his request for counsel and asked whether he wanted to be put in touch with an attorney at that point. Mr. Day then said he had not meant he wanted counsel except for the trial. We concluded the “request” had been equivocal and that, in any event, the questioning by the second officer was not improper because it had been of the narrow sort designed only to clarify the accused’s desire for counsel.

In Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985), we reversed a conviction because questioning had continued after an accused had asked for her lawyer by name. In the opinion we noted the three approaches the courts have taken to an equivocal statement which might or might not be construed to amount to a request for counsel during custodial interrogation. First is the “narrow questions permitted” approach we used in the Day case. Second is the approach which requires all questions to cease regardless of the ambiguity or equivocation in the reference by the accused to a need for counsel. The third approach establishes a threshold beyond which a reference must go before it becomes a “request” necessitating the cessation of questioning in accordance with Edwards v. Arizona, supra.

Other states have confronted the problem. The holdings in some cases involving similar circumstances have been largely to the effect that the obligation to cease the interview does not arise unless there has been a clear invocation of the right to counsel. See, e.g., State v. Moorman, 744 P.2d 679 (Ariz. 1979); Commonwealth v. Pennellatore, 467 N.E.2d 820 (Mass. 1984); State v. Campbell, 367 N.W.2d 454 (Minn. 1985).

We have not found a situation just like this one in any other case. In the cases cited above, the authorities questioning the accused have, when confronted with an equivocal reference to counsel, either stopped the interrogation or they or the accused have in some manner clarified the situation. In this case, we have only Deputy Hopper’s response to the reference which did not attempt to clarify whether Mr. Higgins wanted an attorney for the interrogation.

All of the cited cases are about the Fifth Amendment right to counsel as explained in Miranda v. Arizona, supra. The United States Supreme Court has recently made it very clear that the Fifth Amendment and the elaboration of it in the Edwards case do not require an interrogation to cease when the reference to the need for an attorney by an accused is ambiguous. The Supreme Court has clearly adopted the “threshold” approach we described in Hendrickson v. State, supra.

In Davis v. United States, No. 92-1949, decided June 24, 1994, the facts were that a sailor who had been read his rights by naval personnel investigating a murder said “Maybe I should talk to a lawyer.” When asked if he were requesting a lawyer, he said he was not, and the interview continued, resulting in an inculpatory statement. The latter fact makes the Davis case like those cited above where law enforcement officers did not let the ambiguous reference just drop, but sought to clarify it. That is, of course, different from the facts now before us, but the language of the opinion about the requirement found in the Edwards case is revealing and helpful.

Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. McNeil v. Wisconsin [501 U.S.171 (1991)]. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require cessation of questioning.
* * 4=
The Edwards rule . . . provides a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information. But if we were to require questioning to cease if a suspect makes a statement that might be a request for an attorney, this clarity and ease of application would be lost. Police officers would be forced to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he hasn’t said so, with the threat of suppression if they guess wrong. We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.

Thus we now have it on clear authority that an ambiguous reference to an attorney by a suspect after hearing his Miranda rights read does not require that the interrogation cease. Mr. Higgins’ reference to an attorney in this case was surely ambiguous and hardly amounted to the sort of direct request required to invoke his Fifth Amendment right to counsel. While we cannot say for certain how the Supreme Court would have decided the case now before us, the language of the opinion in the Davis case leads us to suspect it would affirm on this point, thus we do so.

3. The magistrate

As noted above, Mr. Higgins was arrested for rape while he was incarcerated on a DWI II charge. Despite the fact that he had already been arrested on the basis of the statements of his children, he was taken before a municipal court magistrate who, purporting to act for the Circuit Court, issued a document entitled “Bench Warrant for Arrest.”

Mr. Higgins argues that the magistrate was not properly appointed to his position and thus the allegations against him should have been dismissed. Even if the arrest had been based on the warrant in question, and even if the arrest had been illegal, that would not have constituted a basis for dismissal. United States v. Crews, 445 U.S. 463 (1980); Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993).

Affirmed.


author: Tom Glaze, Justice.

text:
    David DODDS and Vicki Dodds v. HANOVER INSURANCE COMPANY
    93-1152
    880 S.W.2d 311
    Supreme Court of Arkansas
    Opinion delivered July 11, 1994

      Gary Eubanks & Associates, by: James Gerard Schultze and Robert L. Gross, for appellants.

      Wright, Chaney, Berry & Daniel, P.A., by: William G. Wright, for appellee.
   Tom Glaze, Justice.

Around March 28, 1989, appellants David and Vicki Dodds contacted Thomas H. Humphreys, III, a salesman for Hadfield & Williams Insurance Company, an independent insurance brokerage firm in Little Rock. Mrs. Dodds requested that Humphreys procure insurance coverage on the Doddses’ property located in Vilonia, Arkansas. The property included a workshop used in Mr. Dodds’ business of building cabinets and furniture. Humphreys submitted applications for insurance on the Doddses’ behalf to a number of companies, but the Doddses obtained no insurance either because no insurer would cover the type risk involved or because the Doddses were unwilling to pay the amount of premium an insurer asked for such coverage.

On May 22, 1989, representatives of appellee Hanover Insurance Company visited the offices of Hadfield & Williams for the purpose of establishing a business relationship. Hanover is an Oklahoma corporation authorized to do business in Arkansas. During that visit, Humphreys discussed the Doddses’ situation, and Hanover agreed to review their application and give Humphreys a quote on such coverage. Humphreys completed the Doddses’ application, and submitted it to Hanover that same day. The application provided for an effective policy date of June 1, 1989, the date Hanover and Hadfield & Williams expected to begin doing business together. The application required the applicant to list all claims or occurrences which might have given rise to a claim during the previous five years, and Humphreys responded “none.”

On June 1, 1989, a windstorm damaged the Doddses’ building in Vilonia. On June 2, Mrs. Dodds informed Humphreys by telephone of the damage, but Humphreys did not notify Hanover of the loss at that time. On June 5, Mrs. Dodds sent a premium installment payment of $453 payable to the order of Hadfield & Williams, and on June 29, Hanover issued a policy on the Vilonia property effective June 1, 1989. The contract of insurance was on a Hanover form with Hadfield & Williams listed as agent and Humphreys signing as authorized representative. Over the subsequent months, the Doddses paid the total premium amount of $1844. In May 1990, Humphreys finally notified Hanover of the damage to the Doddses’ property that occurred on June 1, 1989. Hanover investigated the claim, and denied it by letter dated July 17, 1990.

The Doddses filed suit against Hanover for breach of insurance contract and the tort of bad faith, alleging $128,000 in damages. Hanover filed a motion for summary judgment claiming the insurance policy was void from its inception for lack of mutuality and fraudulent concealment, and alleging Humphreys was the agent of the Doddses in procurement of the policy. On March 26, 1993, the trial court entered an order granting Hanover’s motion of summary judgment and dismissing the Doddses’ action. The trial court found the Doddses were under a continuing duty of good faith to notify Hanover of the loss prior to Hanover’s acceptance of the risk. It further held that Humphreys was the agent of the Doddses for purposes of disclosing the property damage, and the Doddses’ failure in notifying Hanover prior to the issuance of the policy amounted to concealment, thus voiding the policy. The Doddses appeal from that order of summary judgment.

Summary judgment is a remedy that should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Wyatt v. St. Paul Fire & Marine Ins. Co., 315 Ark. 547, 868 S.W.2d 505 (1994). On appellate review, this court must only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leaves a material question of fact unanswered. Reynolds v. Shelter Mutual Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993). All proof submitted must be viewed in a light most favorable to the.party resisting the motion, and any doubts and inferences must be resolved against the moving party. Wyatt, 313 Ark. 547. Only when the movant makes a prima facie showing of entitlement does the burden shift, and then the respondent must meet proof with proof by showing genuine issue as to a material fact. Id.

While agency is normally a question of fact to be determined by the trier of fact, it becomes a question of law when the facts are undisputed, and only one inference can reasonably be drawn from them. Jumper v. L & M Transport, Inc., 296 Ark. 319, 756 S.W.2d 901 (1988); Fireman’s Transportation Ins. Co. v. Leftwich, 192 Ark. 159, 90 S.W.2d 497 (1936). Here, both parties agree that an agency relationship existed. The dispute centers on what type of agency relationship and with which party that relationship existed. While Hanover argued Humphreys was no more than a soliciting agent and, as such, was the agent of the Doddses, the Doddses merely argued Humphreys was the agent of Hanover.

The Doddses, citing Travelers Indemnity Co. v. National Indemnity Co., 292 F.2d 214 (8th Cir. 1961), recognize the rule that a broker is primarily the agent of the person who first employs him, and where he is employed to procure insurance, he is the agent of the person for whom the insurance is procured. However, they further point out that under special circumstances, the broker may be converted to the insurance company’s agent through some action taken on the part of the company or facts that may have arisen from which the broker’s authority to represent the company as an agent may be fairly inferred. See also Cheatham v. 100% Certain Underwriters at Lloyds, 783 F.Supp. 1174 (E.D. Ark. 1991).

Here, the Doddses argue such special circumstances do exist, namely, (1) Humphreys and his firm began representing Hanover effective June 1, 1989, and (2) Hanover provided Humphreys with policy forms and permitted him to sign the forms as its authorized representative. The Doddses contend that in view of these actions taken by Hanover, it was not unreasonable for them to assume Humphreys was the one they should notify of their June 1, 1989 loss. Likewise, they say it was reasonable to expect that Humphreys would in turn notify Hanover of the loss. Of course, Humphreys, for whatever reason, failed to promptly inform Hanover of the Doddses’ loss. Hanover, unaware of the loss, issued its policy twenty-eight days later.

Hanover relies upon the general rule that an insurer is liable for a loss under a backdated policy only when the loss occurs between the time the policy became effective and the time the policy is issued, and both the insured and the insurer are ignorant of the loss when the policy is issued. 4 J. Appleman, Insurance Law and Practice, § 2291 (2nd ed. 1969); Arkansas Insurance Co. v. Bostick & Ryan, 27 Ark. 539 (1872). Conversely, if the insured knows of the loss at the time the insurance is effected but the underwriters are ignorant of the loss, the insurer is not liable.

Hanover emphasizes that no temporary binder of insurance had been requested or issued in this case, nor did it ever specifically accept the Doddses’ loss which pre-existed issuance of Hanover’s policy. Hanover further relies on the generally accepted rule uberrima fides which requires an insurance applicant to use due and reasonable diligence to disclose all facts affecting the risk which arise subsequent to the application and prior to the completion of the contract. See 9 Couch on Insurance 2d § 38:21 (Rev. ed. 1985); Springfield Fire & Marine Ins. Co. v. National Fire Ins. Co., 51 F.2d 714 (8th Cir. 1931).

The Doddses make no attempt to challenge the authority or rules relied on by Hanover, but do take issue with their applicability to the facts presented in this cause. They basically claim they met their uberrima fides obligations by having notified Humphreys of their loss on June 2, 1989 — well before the Hanover policy was issued on June 29, 1989. As touched on earlier, the linchpin of the Doddses’ argument is that Humphreys was Hanover’s agent and that he at least had apparent authority to receive notice of the Doddses’ loss after the application had been submitted. Too, the Doddses submit that they should have been able to rely on Humphreys to forward notice of their loss to Hanover.

The Doddses’ argument largely ignores whether Humphreys was a soliciting agent or a general agent — a distinction of major significance, considering the circumstances in this case. A general agent is ordinarily authorized to accept risks, to agree upon the terms of insurance contracts, to issue and renew policies, and to change or modify the terms of existing contracts. A soliciting agent is ordinarily authorized to sell insurance, to receive applications and forward them to the company or its general agent, to deliver policies when issued and to collect premiums. Holland v. Interstate Fire Ins. Co., 229 Ark. 491, 316 S.W.2d 707 (1958). In addition, a soliciting agent has no authority to agree upon the terms of the policies or to change or waive those terms, nor can his knowledge be imputed to the company he represents. Id. See also Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978). While the Doddses would like to conclude their argument merely by labeling Humphreys “an agent of Hanover’s,” we are unable to do so, primarily because Hanover and the trial court dealt with this general/soliciting agent issue in the summary judgment motion, and Hanover now argues it on appeal.

As established by the above case law, if Humphreys was merely a soliciting agent for Hanover, his knowledge of the Doddses’ loss, pre-existing issuance of the policy, was not imputed to Hanover. In other words, Hanover neither received constructive notice nor actual notice of the Doddses’ loss prior to the issuance of the policy. Accordingly, Hanover, under controlling law discussed hereinabove, would not be liable under the backdated policy issued to the Doddses since it was unaware of the Doddses’ loss before the policy’s issuance.

For the Doddses to prevail against Hanover in this matter, it was incumbent upon them to present evidence indicating Humphreys was a general agent, thereby possessing the authority to accept risks for Hanover and to change or modify the terms of Hanover’s policies. See Holland, 229 Ark. at 493, 316 S.W.2d at 709. See also American Nat. Ins. Co. v. Laird, 228 Ark. 812, 311 S.W.2d 313 (1958). The Doddses failed to meet that burden. Hanover, on the other hand, submitted the affidavit of its underwriter supervisor, George K. Blair, who attested it was material to Hanover’s issuance of the Dodds policy that the Doddses’ application indicated that no incidences had occurred to their property within the last five years that could have given rise to a claim. Further, Blair stated unequivocally that Hanover would not have issued the policy on June 29, 1989, if it had known of the damage which had occurred on June 1, 1989. He also averred that no underwriter at Hanover, including himself, had authority to issue policies on structures “which are in a recent state of destruction as a result [of] a risk Hanover insures against.” With this affidavit provided by Hanover, it became the Doddses’ burden to meet proof with proof and to show that Humphreys was authorized to accept such a risk on behalf of Hanover. See Wyatt, 315 Ark. 547, 868 S.W.2d 505. With no further proof on this issue, the trial court concluded that the undisputed facts showed that neither Humphreys nor any Hanover underwriter had the authority to issue an insurance policy covering property which had already been destroyed and that Hanover, the insurer, had no knowledge of it. Based upon the law and proof presented below, we hold the trial court ruled correctly on this point.

In conclusion, we note the Doddses’ reliance upon the two cases of Hal H. Peel & Co. v. Hawkins, 175 Ark. 806, 300 S.W.2d 420 (1927), and Springfield Mutual Ass’n v. Atnip, 169 Ark. 968, 279 S.W. 15 (1925). Citing Hawkins and Atnip, the Doddses contend that, when an insurer authorizes an agent to act on its behalf, an insurance buyer .can presume, in the absence of notice to the contrary, that the agent has the authority of a general agent.

In prior discussion, we thoroughly discussed the distinction between soliciting and general agents and that only a general agent is authorized to accept risks, to agree upon the terms of insurance contracts, to issue and renew policies, and to change or modify the terms of existing policies. Here, the Doddses admittedly had worked with Humphreys for two months in trying, without success, to obtain an insurer that would accept the risk posed by the Doddses having a dwelling which contained a business. The Doddses were well aware that Humphreys’ status was not one that permitted him to authorize insuring such a risk. The Doddses’ own testimony reflects that they knew Humphreys’ limited or special status. They knew Humphreys procured home insurance, he had been authorized to place insurance with Hanover, he had submitted the Doddses’ application to Hanover, he said that the Doddses’ home had coverage, and he had issued and signed as authorized representative on a Hanover policy.

Undoubtedly, Humphreys’ actions may well have misled the Doddses, but they were well aware Humphreys had no independent authority to accept risks, much less one which would bind Hanover on a pre-existing loss of which it had no knowledge. The record reflects that the Doddses knew full well that Humphreys could procure and place insurance coverage. At most the proof submitted by the parties showed Humphreys was either Hanover’s soliciting agent or at the least (as found by the court) he was the soliciting agent of the Doddses. Either way, the Doddses knew they were dealing with someone who took and forwarded insurance applications to an insurer that must approve and accept risks. In these circumstances, the Doddses could not presume Humphreys had the authority of a general agent.

For the reasons above, we affirm the trial court’s decision.

       Hanover offered other arguments which had nothing or little to do with the issue of agency, but, holding as we do, wc need not consider these arguments in this opinion.


author: Robert L. Brown, Justice.

text:
    Melinda R. HAMILTON, et al. v. Virginia D. HAMILTON, et al.
    94-55
    879 S.W.2d 416
    Supreme Court of Arkansas
    Opinion delivered July 11, 1994

      Sloan, Rubens & Peeples, by: Kent J. Rubens and James A. Davis, Jr., for appellant.

      Hardin, Jesson, Dawson & Terry, by: P.H. Hardin, for appellee.
   Robert L. Brown, Justice.

This case challenges the right of the surviving spouse, appellee Virginia D. Hamilton, to take against her deceased husband’s will. On January 22, 1992, Barrett Hamilton died. He and Virginia Hamilton had been married since 1981. They had separated in May 1990, and Barrett Hamilton had filed for absolute divorce on August 17, 1990. At the time of his death, Barrett Hamilton had two adult daughters by a previous marriage. They are the appellants in this case, Melinda R. Hamilton and Marón M. Hamilton.

Under his will, Barrett Hamilton provided for his wife as follows:

(c) I give and bequeath to my Wife, VIRGINIA DALTON HAMILTON, if she survives me, and as along as she shall remain my lawful wife but not longer, all distributions, benefits, and allowances from my real and personal property, to which she is entitled from my estate as her dower interest under Arkansas law.

The residuary clause in the will left the remainder of all property to his two daughters.

On February 21, 1992, Virginia Hamilton renounced her rights under the will and filed her election to take her share against the will of her husband under Ark. Code Ann. § 28-39-401 (1987). On January 8, 1993, Melinda and Marón Hamilton filed a motion to declare § 28-39-401 unconstitutional on its face and as applied because the statute violates the Equal Protection and Due Process Clauses of both the federal and state constitutions. The motion further urged that with respect to the decedent and Virginia Hamilton, the probate court “treat the parties as divorced.” On August 5, 1993, the probate court found that the elective share statute was constitutional and that Virginia Hamilton was entitled to take against the will.

A. STANDING

Though standing of the daughters to file their motion was not raised by Virginia Hamilton, we raise the issue on our own. See McDonald’s Corp. v. Hawkins, 315 Ark. 487, 868 S.W.2d 78 (1994). A party has standing to challenge the validity of a statute if that party has suffered injury or belongs to a class which is prejudiced by the law. Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991). In this vein, we have held that when a “best friend” who was a devisee and beneficiary of the testator under the will stood to lose financially after the surviving spouse elected to take against the will, that friend had standing to challenge the constitutionality of the election statutes. See Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981). The test for standing under Huffman, which had facts comparable to those in the case before us, was whether the party contesting the election would lose financially if the election took effect.

The question presented is whether the Hamilton daughters would stand to lose financially because of the widow’s election. Virginia Hamilton was left her dower interest under the will. However, under the election statute, § 28-39-401(b)(l), the widow is entitled to homestead rights and statutory allowances in addition to dower:

(1) The surviving spouse, if a woman, shall receive dower in the deceased husband’s real estate and personal property as if he had died intestate, which dower shall be additional to her homestead rights and statutory allowances;

Thus, the surviving spouse would realize more by taking her elective share in this instance than under the will where her distribution is limited to her dower interest, and the daughters’ shares in the residuary estate would, accordingly, be reduced by the election. Because this is the case, the daughters do have a financial interest which is diminished by the election, and standing to file their motion exists.

B. CONSTITUTIONAL ARGUMENTS

We turn next to the constitutional arguments raised by the two Hamilton daughters. We presume that a state statute is constitutional, which places the burden on the daughters as the challenging parties to demonstrate otherwise. Citizens Bank v. Estate of Petty John, 282 Ark. 222, 667 S.W.2d 657 (1984). All doubts pertaining to a statute in question are resolved in favor of constitutionality. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). Where a constitutional construction is possible, we are compelled to uphold the validity of the statute under attack. Id.

In determining whether a statute violates equal protection dictates, we consider several factors: (1) the character of the classification; (2) the individual interests asserted in support of the classification; and (3) the governmental interests asserted in support of the classification. Arnold v. Kemp, supra; In the Matter of the Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984). The Equal Protection Clause does not preclude all statutory classifications. Urrey Ceramic Tile Co. v. Mosley, 304 Ark. 711, 805 S.W.2d 54 (1991). Indeed, statutory classifications which have a rational basis and are reasonably related to the purpose of the statute are permissible. Id.

We engage in the following exercise in assessing whether a rational basis for a classification in our statutes exists:

On an equal protection challenge to a statute, it is not our role to discover the actual basis for the legislation. Instead we are merely to consider whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives, so that the legislation is not the product of utterly arbitrary and capricious government purpose and void of any hint of deliberate and lawful purpose. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Further, the party challenging the legislation has the burden of proving that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts. Streight, 280 Ark. at 214.

Arkansas Hosp. Ass’n v. Arkansas State Bd. Pharmacy, 297 Ark. 454, 456, 763 S.W.2d 73, 74 (1989).

The daughters advance the policy argument that the concept of an election statute for the economic protection of surviving spouses is outmoded. Moreover, they continue, the elective share concept runs counter to the testator’s intent and is unfair to the beneficiaries under the will. They further highlight the disparate treatment in our statutes between divorced spouses with division of property under Ark. Code Ann. § 9-12-315 (Repl. 1993) and surviving spouses with their elective share rights under § 28-39-401. They assert that both classifications of spouses are similarly situated because regardless of the cause — divorce or death — the result is a termination of the marriage. Accordingly, they should be treated the same. In the case at hand, the daughters point out that Virginia Hamilton stands to gain much more by taking her elective share than she would under our divorce laws because, as the subsequent wife, her contribution to the property in Barrett Hamilton’s estate was minimal.

This reasoning, though, is flawed. The policy consideration behind the statutory division of property as part and parcel of a divorce is not the same as the policy consideration giving rise to the elective share statute. The former policy deals with the dissolution of the marriage contract and the division of property. The latter is designed to prevent injustices when a marriage endures until the death of the husband or the wife. We easily discern a rational basis behind the General Assembly’s distinct handling of the two classes of spouses. Furthermore, any effort to amend the treatment afforded to the two groups is more appropriately addressed to the General Assembly. In sum, we decline to strike down § 9-12-315 as violative of the Equal Protection Clause, either facially or as applied. See In the Matter of Patrick, 402 S.E.2d 664 (S.C. 1991) (providing for surviving spouses is a legitimate legislative purpose and salvages the elective share statute from an equal protection attack).

Nor do we view the fact that Barrett Hamilton and Virginia Hamilton were estranged at the time of his death and that a divorce action was pending as altering our conclusion in this matter. Hamilton’s death had the effect of terminating the divorce action. Childress v. McManus, 282 Ark. 255, 668 S.W.2d 9 (1984); Pendergist v. Pendergist, 267 Ark. 1114, 593 S.W.2d 502 (Ark. App. 1980). Hence, the parties were still married under our laws when Hamilton died. His widow’s election to take against his will was appropriate, the pending divorce action notwithstanding. See In the Matter of the Estate of Kueber, 390 N.W.2d 22 (Minn. App. 1986) (estranged wife who was never divorced from testator entitled to her elective share).

The daughters also assert that Virginia Hamilton’s elective share amounts to a taking of their property without compensation under the Due Process Clause of the state and federal constitutions. This court has recognized that the surviving spouse’s right to an elective share is inviolate. See Gregory v. Estate of H.T. Gregory, 315 Ark. 187, 866 S.W.2d 379 (1993). This is true despite our acknowledgment that a spouse’s decision to elect to take against the will at times rebuffs the testator’s testamentary wishes. Id. The elective share provisions are designed to strike a balance between a testator’s right to control the distribution of his or her property for life, while preserving the State’s interest in protecting the surviving spouse. See Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987); Estate of Dahlmann v. Estate of Dahlmann, 282 Ark. 296, 668 S.W.2d 520 (1984). As in the case of the classification discussed above, a legitimate government interest supports the diminishment in the daughters’ shares caused by the widow’s election.

Affirmed.


author: Per Curiam.

text:
    John CLAIBORNE v. STATE of Arkansas
    CR 94-661
    877 S.W.2d 936
    Supreme Court of Arkansas
    Opinion delivered July 11, 1994

      Clarence Walden Cash, for appellant.
    No response.
   Per Curiam.

The appellant, John Claiborne, by his attorney, Clarence Walden Cash, has filed a motion for rule on the clerk. His attorney accepts full responsibility and admits that the record was tendered late due to his error.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Undra SUMLIN v. STATE of Arkansas
    CR 94-362
    879 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered July 11, 1994

      Claudell Woods, for petitioner.
    No response.
   Per Curiam.

On May 2, 1994, Undra Sumlin filed a pro se motion for rule on the clerk and requested appointment of new counsel. This court then directed Sumlin’s current counsel to appear to show cause why he should not be held in contempt for failing to lodge a timely transcript and briefs in the cause on appeal. On May 23, 1994, attorney Claudell Woods appeared pursuant to this court’s direction and informed this court that he had timely filed a notice of appeal in this matter but failed to follow through on the other matters to perfect Sumlin’s appeal. Sixteen months now have passed since a notice of appeal was filed.

Mr. Woods further advised this court that he had never requested a transcript be prepared. Woods indicated his willingness to file a petition for a writ of certiorari so the court reporter could prepare the transcript, and he would then file a brief thereafter. He further agreed that he would have these matters achieved within 60 days. This court held the contempt proceedings in abeyance until further action on Woods’ part. On June 23, 1994, Woods now has filed an inappropriate motion for belated appeal, and in his motion, states his willingness to file a brief after he has received the transcript. It is obvious the record and Sumlin’s brief cannot be prepared and filed within the above-mentioned 60-day period.

Rather than delay this appeal further for the filing of a proper motion, we will treat Mr. Woods’ and Sumlin’s pro se motion as a request for writ of certiorari which is hereby granted. The court reporter and circuit clerk are directed to prepare the transcript for filing in this case within forty-five days. Sumlin’s request for new counsel is also granted as we are hereby dismissing Mr. Woods from further responsibility in this appeal.

No further hearings will be conducted in Mr. Woods’ proceeding, but we refer this matter to the Professional Conduct Committee for further review and appropriate action.


author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Ray TOWNSEND and Ray Townsend Farms, Inc.
    94-202
    879 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered July 18, 1994

      Robert L. Wilson and Charles Johnson, for appellant.

      Carl J. Madsen and Ronald Hope, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a second appeal by the Arkansas State Highway Commission (“Commission”) of decisions by the Monroe County Chancery Court denying it injunctive relief over a highway right-of-way. After we held that the chancery court was wrong in denying the Commission’s request, we reversed its decision and “dismissed” the original case. Arkansas State Highway Comm’n v. Townsend, 313 Ark. 702, 838 S.W.2d 66 (1993) ("Townsend I”).

In a later proceeding filed in the same suit, Monroe County Chancery Court Number E-92-53, the trial court found that it was powerless to act further and to grant injunctive relief because we had reversed and dismissed this case, as stated in our opinion and mandate, rather than remanding it to the trial court. Upon de novo review, we hold that the present matter could have been regarded as a separate case in the trial court for which she had jurisdiction. We treat it as such, and we remand to the chancellor for entry of her November 2, 1993 decree ordering Townsend to remove all structures on the right-of-way.

In explanation of our holding, we make the following review. This litigation arose when the Commission filed a petition seeking to enjoin appellees Ray Townsend and his company, Ray Townsend Farms, Inc. (“Townsend”), from maintaining a gate, fence, and cabins on an Arkansas state highway right-of-way. The Commission also asked for an order directing Townsend to remove these structures. By ex parte decree, Chancellor Ben Storey ordered Townsend to remove all the property in dispute.

Townsend responded by filing a motion to dismiss the petition and to set aside the ex parte decree, which was granted by another chancellor. After a hearing, Chancellor Pittman entered an order denying the Commission’s request for injunction, finding that, concerning any encroachments on the right-of-way, there had been a “tacit agreement” for years between the parties to permit the structures.

The Commission appealed, arguing that Townsend’s gate, fence, and cabins violated the terms of Ark. Code Ann. § 27-67-304, and we agreed, stating specifically that “[t]he Commission was well within its rights to petition to clear the right-of-way in this case” (Arkansas State Highway Comm’n v. Townsend, 313 Ark. at 705, 858 S.W.2d at 68 (1993)), and that “[tjhe chancery court; accordingly, was in error in finding that, the Commission. was estopped by the conduct of its representatives. Reversed and dismissed.” 313 Ark. at 706, 858 S.W.2d at 69.

A mandate was subsequently issued, informing the chancery court that its decision had been reversed and specifically providing that:

This cause came on to be heard upon the transcript of the record of the Chancery Court of Monroe County, and was argued by solicitors; on consideration whereof it is the opinion of the Court that there is error in the proceedings and decree of said Chancery Court in this cause as set out in the opinion herein delivered.
It is therefore ordered and decreed by the Court that the decree of said Chancery Court in this cause rendered be, and the same is hereby reversed, annulled and set aside with costs; and that this cause be dismissed in accordance with the opinion herein delivered.

(Emphasis ours.)

After the mandate was issued, the Commission made two written demands to Townsend to remove the structures from the right-of-way but without success. Thereafter, the Commission filed a “Petition for Enforcement of the Supreme Court’s Opinion and Mandate and for Contempt Citation” in the original Monroe County Chancery case, asking that Townsend be ordered to comply with the opinion of the higher court.

On September 21, 1993, Judge Kathleen Bell, serving as chancellor, entered an order commanding Townsend to appear to show cause why he had not complied with the supreme court’s mandate. A hearing was held on October 5, 1993, at which Townsend argued that he was not liable as a party defendant in the case. On November. 1, 1993, the attorney for Townsend filed a response to the Commission’s motion to enforce the supreme court’s opinion, explaining that because our opinion dismissed the action and the Commission failed to file a petition for rehearing to correct this dismissal, the chancery court had no power to enter a decree in the matter.

On November 2, 1993, the chancery court entered her first decree ordering Townsend to remove all of the structures on the right-of-way within twenty days. Townsend filed a motion to set aside the decree, arguing once again that the supreme court had dismissed the matter, thus denying the chancery court any jurisdiction. In addition, Townsend asked the chancery court to hold a hearing on the matter.

Another hearing was held, at which Townsend argued that “once it is dismissed . . . this court doesn’t have anything further to do with it.” Townsend went on to explain that: “If there was an error here, it was by the Supreme Court, and the Supreme Court would be the only Court that could correct its error.” The chancellor agreed, reasoning that:

I think the removal would be just and fair and in keeping with the opinion, but the opinion reverses and dismisses, and I think it’s an error as Mr. Hope may concede. But, in any case, I don’t have the authority to interpret this decision or the mandate, or to clarify what the Supreme Court opinion did. I think any further action on your part other than proceeding before me in this case is a waste of the court’s time, but I just don’t see what I can do because of what the mandate clearly says. My hands are tied.

With that, Chancellor Bell entered a second decree and dismissed the Commission’s petition asking for an injunction against Townsend. It is from this finding that the Highway Commission appeals.

Townsend is wrong in his contention that, regardless of our specific holding in the body of the opinion that “the chancery court.. . was in error in finding that the Commission was estopped by the conduct of its representatives” (313 Ark. at 706, 858 S.W.2d at 69), the fact that we stated at the conclusion of our opinion and our mandate that we reversed and dismissed the case renders the chancery court powerless to act to enforce our holding with regard to the blockage of the right-of-way.

In Townsend I, after reviewing this case de novo, we held that the chancery court was wrong in denying the Commission an injunction to force Townsend to remove his structures from the right-of-way — indeed, this language was very clear. Townsend claims that the phrase “reversed and dismissed” should control over the opinion’s language, which, therefore, would deny the chancery court jurisdiction.

Granted, our signals to the trial court were not crystal clear in Townsend I as we reversed and dismissed the decree of the chancery court when we should have reversed and remanded the matter. However, the body of the opinion was quite clear in its intended result, despite our stated disposition.

In order to bring this matter to a final resolution, we again review the case de novo. While we will not reverse a chancellor’s factual findings absent clear error, we are free to apply a remedy different from that selected by the Chancellor if the facts warrant it. Arnold v. Williams, 315 Ark. 632, 870 S.W.2d 365 (1994); Ferrell v. Colombia Mut. Cas. Ins. Co., 306 Ark. 533, 816 S.W.2d 593 (1991); Ferguson v. Green, 211 Ark. 556, 587 S.W.2d 18 (1979).

When the Arkansas State Highway Commission petitioned for an injunction subsequent to our original decision, the chancellor could have treated it as a new case rather than as a continuation under the aegis of the original filing. Under those circumstances, she would have assumed jurisdiction independently of the mandate from this court in Townsend I. See Lowe v. Morrison, 270 Ark. 668, 606 S.W.2d 569 (1980). Had she done so, her first decree ordering Townsend to remove all of the structures on the right-of-way would have been correct, and that is the posture we assume in this de novo review.

In sum, we hold that Chancellor Bell’s first decree be reinstated. To require the Arkansas State Highway Commission to file yet another petition would be wasteful and unnecessary.

Reversed and remanded.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. How this court erred in Townsend I can be simply described. The Commission had asked the chancellor to enjoin Townsend from maintaining certain structures on the Commission’s right-of-way, and further requested Townsend be ordered to remove the structures. The chancellor denied the Commission’s requests, and, on appeal, this court held the chancellor was wrong. Instead of reversing and remanding for further proceedings consistent with this court’s decision, we erroneously ended the opinion by saying the case was “reversed and dismissed.'”

It is quite easy for an appellate court to correct an inadvertent error — it recalls its mandate, corrects the mistake and returns it to the lower court to permit the prevailing party to enforce the mandate. Sup. Ct. R. 5-3(d); 5 C.J.S. Appeal & Error § 1012 (1993); see also Gipson v. Brown, 296 Ark. 160, 752 S.W.2d 752 (1988) (supp. opinion denying rehearing) (although this court in Gipson did not mention the word “mandate,” the court by supplemental opinion “clarified” what it meant by its use of the words “appeal dismissed” in its earlier opinion); Ark. Code Ann. § 16-67-325 (1987).

Here, the chancellor was justifiably bewildered when she read the court’s opinion stating the chancellor had erred in refusing to grant the Commission’s request for an injunction but then dismissing the Commission’s action altogether. The majority opinion seems to concede this court erred by saying it should have reversed and remanded. But it then suggests that any problem or confusion caused by our earlier opinion could have been resolved if the chancellor had treated the Commission’s petition (filed in the original case after this court’s “reversal and dismissal”) as a “new case.” Somehow this contrived labeling serves to correct the court’s error. Such reasoning and procedure mystifies me. The majority certainly cites no law authorizing this procedure. Why the court is unwilling to recall the mandate to correct its error is puzzling.

In any event, it is this court’s responsibility to correct its error, not the chancellor’s. This court’s instructing the chancellor to treat the Commission’s petition as a “new case” serves only to raise other possible issues via the doctrines of collateral estoppel and res judicata. It would be much clearer and more forthright for this court to correct its mandate and allow the parties and chancellor to proceed on the action they filed and tried in the first place.


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

text:
    Willie Earl JONES v. STATE of Arkansas
    CR 94-386
    880 S.W.2d 522
    Supreme Court of Arkansas
    Opinion delivered July 18, 1994

      William R. Simpson, Jr., Public Defender, by; Joseph Cordi, Jr., Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by; Brad Newman, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

On September 15, 1993, the Appellant, Willie Earl Jones, was tried by jury and found guilty of two counts of delivery of a controlled substance and one count of possession of drug paraphernalia. He was sentenced to 37 years imprisonment. He appeals on the ground that the Trial Court erred in allowing evidence of a prior conviction to be admitted in violation of Ark. R. Evid. 609. We agree and reverse the conviction and remand the case.

The State introduced evidence from which a jury could have found that Mr. Jones sold cocaine to a police informant on December 1, 1992, and again on December 7, 1992, at a house in North Little Rock. The officers returned on December 8, 1992, and purchased cocaine from Leonard Coffey, who testified for the State. The officers obtained a search warrant for the premises and on the following day recovered various items of drug paraphernalia as well as cocaine.

During the State’s cross-examination of Mr. Jones he was asked about his several felony convictions. At one point he was asked if he remembered being convicted of receiving stolen property in California in 1982. Mr. Jones objected to this question on the ground that the 1982 conviction was not relevant. The Trial Court overruled the objection.

Rule 609 states in part that evidence of a prior conviction is admissible to attack the credibility of a witness if the crime:

(1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.

The rule also states that evidence of a conviction is not admissible if “a period of more than ten [10] years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.”

Mr. Jones contends that the State failed to show both that the crime was punishable by more than one year imprisonment, and that the time period between his conviction or release and the trial was less than ten years. He contends it was obvious that the conviction was more than 10 years old, and the Trial Court should not have admitted evidence of it without inquiring further as to its admissibility.

In Hawksley v. State, 276 Ark. 504, 637 S.W.2d 573 (1982), Mr. Hawksley was accused of burglary, aggravated assault, criminal mischief, and two counts of battery arising from a single incident. When cross-examining Mr. Hawksley the prosecution asked whether he remembered an incident in which he was convicted of escape and disorderly conduct as criminal mischief in the second degree. The defense counsel said, “Object to that, I’d like to approach the bench on that...” The prosecutor responded that Mr. Hawksley had raised an issue of self defense and she was entitled to show a prior act of violence. After an apparently unrecorded bench conference, the objection was overruled.

We held the objection was sufficient to raise the question presented by Ark. R. Evid. 609 and the State had not shown the offenses mentioned were punishable by more than a year imprisonment or involved dishonesty.

Writing for a unanimous Court, Justice Frank Holt said, “Once counsel raises the issue of whether the defendant’s prior convictions should be excluded from trial, the trial judge has the duty to see that he is informed of the relevant considerations before admitting the evidence.” The opinion then pointed out that the offenses about which the question asked might or might not have been ones involving more than a year imprisonment and stated, “The state did not prove, nor did the trial judge make sufficient inquiry in the conference at the bench, to determine if the convictions were for crimes punishable by imprisonment of one year and thus admissible into evidence.”

In this case, the colloquy surrounding the question was as follows:

MRS. MERRITT [DEPUTY PROSECUTOR]: Were you convicted in California in 1982 of receiving stolen property?
MR. JONES: 1982? I might have.
MR. THOMPSON [DEFENSE COUNSEL]: I’ll object to the relevance of that. How is that relevant to what he’s charged with today?
THE WITNESS [MR. JONES]: That don’t have anything to do with this here.
MRS. MERRITT: Your Honor, again, I’m entitled to impeach him with his prior felony convictions.
THE COURT: Overruled.

The State’s only argument in this appeal is that Mr. Jones’s objection was insufficient to raise the issue whether the 1982 conviction was being challenged as inadmissible according to Rule 609. We disagree. If the objection was sufficient in the Hawksley case to raise the issue whether those convictions involved sentences in excess of one year imprisonment, the objection here to a conviction obviously more than 10 years old was sufficient to raise the issue whether it might be inadmissible because of its age. Nor do we have any idea whether the 1982 California offense alleged was punishable by more than a year imprisonment.

Rule 609, in effect, determines for the Trial Court those convictions which will be considered relevant and those which will not. The relevancy objection was thus appropriate.

We clearly have placed the burden on the Trial Court in such situations to go forward to determine whether the Rule permits the conviction to be admitted into evidence rather than on the accused to offer proof that the conviction would be excluded by the Rule. It was error for the Trial Court not to proceed in that manner in this case.

Reversed and remanded.

Hays and Glaze, J.J., dissent.

Tom Glaze, Justice,

dissenting. At trial, Jones objected to the state’s mentioning his 1982 prior conviction because that conviction was “irrelevant” and should not have been used by the state to impeach his testimony. On appeal, Jones changes his objection, contending the state’s reference to the 1982 conviction was inadmissible under Ark. R. Evid. 609(b).

First, a party cannot change the grounds for an objection on appeal. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993). Second, it is the duty of the party desiring relief to apprise the trial court of the proper basis upon which he relies in order to preserve an issue for appeal. Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992). Third, an objection below must be specific enough to inform the trial court of the error complained of on appeal. Anderson v. State, 311 Ark. 332, 842 S.W.2d 855 (1992).

If the trial court (or the state) had been aware that Jones’ objection would have embraced Rule 609(b), it would have known to have asked when Jones had been released from confinement from the 1982 conviction. If Jones’ release date had been less than ten years, the trial judge’s ruling admitting the 1982 conviction to be mentioned for impeachment purposes was correct. It is unfair for this court on appeal to reverse the trial judge based on an argument not raised below. Jones having said the word “irrelevant” in no way placed the trial judge on notice that Rule 609 considerations were in issue.

Finally, the majority court cites Hawksley v. State, 276 Ark. 504, 637 S.W.2d 573 (1982), for the proposition that when a defendant’s prior convictions are mentioned, the trial judge has the duty to see that he is informed of the relevant considerations before admitting the evidence. The Hawksley opinion cites no authority for such a proposition, and in fact, such a suggestion directly counters the court’s well-settled law that it is the defendant’s duty to state the specific grounds for his or her objections.

This court’s decision that a mere general irrelevancy objection is sufficient to raise other reasons for excluding prior convictions means, henceforth, trial judges must make inquiry as to prior-conviction evidence under Ark. R. Evid. 403, 404, 405, 608 and 609 even though the defendants never specifically mention any of those rules. In my view, a trial judge has no business expanding and delving into objections on his or her own volition.

Most likely, less than ten years had elapsed between Jones’ release from confinement due to his 1982 conviction and his trial date — September 15, 1993. If so, this court’s reversal is not only wrong on the law, but on the facts as well. I would affirm this case.

Hays, J., joins this dissent.

       (b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten [10] years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.

       Each of the rules obviously may have some relevance to a prior convictions admissibility.


author: Donald L. Corbin, Justice.

text:
    Charles Randall DAVIS v. STATE of Arkansas
    CR 93-1333
    879 S.W.2d 439
    Supreme Court of Arkansas
    Opinion delivered July 18, 1994

      Tom Garner, for appellant.

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

Appellant, Charles Randall Davis, appeals the judgment of conviction entered by Fulton Circuit Court on the charge of second degree murder of Gene Robbins. Appellant asserts four points on appeal. We have jurisdiction of this case since more than thirty years imprisonment was imposed. Ark. Sup. Ct. R. l-2(a)(2). We find no merit to appellant’s arguments and affirm.

The body of Gene Robbins was discovered late in the afternoon of October 1, 1992, in a drainage ditch next to the road 180 feet from his residence. Robbins died around 4:00 p.m. that day from a stab wound to the chest which penetrated his heart. During the investigation, law enforcement officers discovered that a man called “Joey” had been staying with Robbins a few days before Robbins was killed. This man, identified as appellant, was seen with Robbins within an hour of the estimated time of death arguing with Robbins and leaving with Robbins in Robbins’s truck. Appellant was identified by the victim’s daughter and arrested the next day on the charge of first degree murder. At trial, the jury was instructed on first degree murder, as well as the lesser included offenses of second degree murder and manslaughter. Appellant was found guilty of second degree murder and sentenced to thirty five years imprisonment. This appeal resulted.

Appellant first argues that the trial court erred in not directing a verdict in his favor. Ordinarily, we treat this as a challenge to the sufficiency of the evidence. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). On appeal, we test the sufficiency of the evidence before considering other assignments of error. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993). The state argues that we need not review the sufficiency of the evidence since appellant was not convicted of first degree murder, for which he moved for directed verdict. Appellant was convicted of a lesser included offense, second degree murder, for which he did not move for directed verdict. The state cites Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993), for this proposition, but that case stands for a different proposition. We said in Hickson that when an appellant moves for directed verdict on capital murder, but is convicted of a lesser included offense, a defendant cannot show prejudice by a denial of the motion for directed verdict on the capital murder charge. The reasoning is that one who does not receive the death penalty cannot obtain reversal based on the jury’s consideration of the death penalty. Hickson did not address whether we will examine the sufficiency of the evidence as to lesser included offenses.

However, we will address the sufficiency of the evidence in this case because appellant’s motion for directed verdict was sufficient to reach the conviction on second degree murder. In view of the objections and challenges appellant made to the trial court in this case, appellant made it obvious that he was challenging the sufficiency of the evidence as to whether he killed anyone. This encompasses the conviction for second degree murder, and we therefore address that issue.

The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence; substantial evidence is evidence which is forceful enough to compel a conclusion one way or the other and which goes beyond suspicion or conjecture. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). We review the evidence in the light most favorable to the appellee and consider only that evidence which tends to support the verdict. Id. This evidence, whether direct or circumstantial, must be of sufficient force to compel a conclusion one way or the other with reasonable certainty. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991). The law makes no distinction between circumstantial and direct evidence. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). However, for circumstantial evidence to be sufficient, it must exclude every other hypothesis consistent with innocence. Id. In light of these rules, we find there was substantial evidence to support the verdict.

At trial, a convenience store clerk testified that she saw appellant and Gene Robbins leave together from the convenience store after Robbins offered appellant a ride just a few days prior to Robbins’s death. Robbins’s daughter positively identified appellant as having stayed with Robbins a few days before his death. The daughter testified that Robbins and appellant were at her house at about 2:30 in the afternoon on the day of his death where they argued about whether some girls were pretty. Appellant and Robbins left in Robbins’s truck at approximately 3:15 p.m. Robbins’s son-in-law testified that as they drove off, he heard raised voices from the truck and saw Robbins pointing his finger at appellant, who was driving.

Another man, Mitchell Hall, testified that he saw Robbins and appellant drive by, but Robbins did not wave at Hall, a longtime friend. Hall’s wife also testified she saw the two in the truck pass by her house and said to her husband that she believed they were having a war. Another man testified that he saw Robbins’s truck parked on the side of the highway at approximately 4:15 p.m. that afternoon and also saw a man on the other side of the road walking and holding out his thumb. This witness testified he stopped and gave this man, whom he identified as appellant, a ride. Appellant said the truck was not his but that he was going home to Paragould though appellant did not know how to get there. The state medical examiner testified that the cause of death was a single stab wound to the chest. The county coroner examined the body where- it was found and estimated Robbins’s time of death to be approximately 4:00 p.m. that day. We cannot say the jury was presented with insufficient evidence to convict appellant of second degree murder.

Even with this circumstantial evidence of timing and location, appellant asserts the state could not prove the requisite intent for second degree murder by circumstantial evidence. However, intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances around the killing. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). Intent may be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the wound. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). In the instant case, the single stab wound to the chest penetrating the heart constitutes sufficient circumstantial evidence to show that appellant acted knowingly in causing the death of Gene Robbins.

Appellant’s next argument is that the trial court erred in denying his motion for mistrial during the testimony of the sheriff. The testimony of the sheriff at issue is as follows:

After she described him so vividly, there was no doubt in my mind that that was the man that I had saw walking along the highway, which would be in the direction of a lot of places, but one would be that would be the route to Harrisburg. I notified the Harrisburg RD. and was furnished with- a photo of a person that they had in their file who fit this description.

This, appellant contends, improperly informed the jury of a criminal past in violation of A.R.E. Rule 404(b). Appellant first requested an admonishing instruction and then moved for mistrial, asking for an admonishing instruction as alternative relief. The trial judge denied the motion and admonished the jury to disregard the previous statement. Appellant contends that this admonishment was insufficient to cure the prejudicial effect of the statement.

We have recognized that any reference to a defendant’s prior convictions during the guilt phase of a criminal trial results in some prejudice to the defendant. Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994). However, trial courts are vested with wide discretion in granting or denying motions for mistrial, and that decision will not be reversed except for an abuse of discretion or manifest prejudice resulting to the defendant. Id. Factors we consider on appeal are whether the prosecutor deliberately induced a prejudicial response and whether an admonishing instruction will cure any prejudice. Id. In this case, no criminal record was revealed. Only the fact that there was a photograph closely matching appellant’s description in the police department’s files was revealed, and this was not deliberately induced by the prosecutor. An admonishing instruction to disregard the previous statement made by the witness was given. We cannot, say the trial judge abused his discretion or that there was manifest prejudice left uncured by the admonishing instruction.

Appellant next argues that the trial court erred in overruling his objection to portions of another witness’s testimony. The witness testified that she saw appellant and the victim pass by her house in the victim’s truck shortly before the estimated time of death. She was about to testify as to what she stated to her husband right after seeing the men in the truck. Appellant entered his objection before the witness related her statement to her husband. Appellant argued at trial that what the witness was about to state was improper lay opinion in violation of A.R.E. Rule 701. The trial judge disagreed, ruling the anticipated statement not an opinion but a present sense impression as allowed under the hearsay exceptions found in A.R.E. Rule 803(1). Rule 803(1) states:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

The witness was then allowed to testify that she turned to her husband and said she believed the victim and appellant were having a war. In reviewing a trial court’s admission of evidence, we do not reverse absent abuse of discretion. Moore, 315 Ark. 131, 864 S.W.2d 863. Since this qualifies as a present sense impression of what the witness just observed, we find no abuse of discretion in this ruling.

Appellant also attempts to argue in his appellate brief the trial court erred in allowing this testimony on the grounds that it violated A.R.E. Rule 403. Appellant did not present this argument to the trial court. Where an appellant objects to testimony on one theory at trial, we will not address a different argument raised for the first time on appeal. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993).

Appellant lastly contends that the trial court erred in denying his objection to the sheriff being allowed to testify from notes not disclosed in discovery. Specifically, the sheriff was about to testify regarding the distances between two houses, and during this testimony he referred to a notebook. Appellant objected stating that though he was aware that the sheriff had made estimations of distances and times between certain locations germane to the case, he had never been provided a report on those figures. The prosecution denied there was a report on those figures and stated that these were merely the sheriff’s own notes. The trial judge overruled the objection and stated that the figures could be provided to defense counsel after the sheriff testified. Appellant asserts on appeal that this ruling resulted in prejudice such that reversal is warranted. We disagree.

If information is not provided pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993). Also, if there is noncompliance in discovery, the trial court may, pursuant to A.R.Cr.R Rule 19.7(a), order compliance, grant a continuance, exclude the evidence, or order other appropriate relief. As was emphasized in Burton, in determining if there was a reversible discovery violation, we must decide if appellant was prejudiced by the lack of disclosure. In light of the fact that appellant was aware that measurements were taken regarding times and distances, and further that tjie trial court made these figures available to appellant, we cannpt say appellant has demonstrated prejudice.

The judgment of conviction is affirmed.

Hays and Glaze, JJ., concur.