text:
    Joan E. NOVAK and Arlene Gail Novak v. STATE of Arkansas
    CR 87-192
    741 S.W.2d 243
    Supreme Court of Arkansas
    Opinion delivered December 14, 1987

      Ohmer C. Burnside, for appellants.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellants raise one issue on appeal, contending the trial court erred in denying their motion to dismiss for violation of their rights to a speedy trial. The case was certified to the supreme court pursuant to Ark. Sup. Ct. R. 29.1 (c) because it involves the interpretation of A.R.Cr.P. Rule 28.3(b).

The important sequence of events necessary to consider in this cause commenced on September 17, 1984, the date the appellants, sisters-in-law, were charged by information for theft of property. Appellants’ first hearing was set on September 24, 1984, when they failed to appear, but based upon a telephone call to the court claiming they had experienced car problems, appellants were granted a thirty-five day continuance to October 29, 1984. Appellants made their first appearance on October 29, and each was adjudicated indigent and appointed an attorney. Soon thereafter, November 23, 1984, the regular presiding judge became ill and entered the hospital, where he remained until March 14, 1985, or approximately three and one-half months. Nothing further occurred in the appellants’ case until June 15, 1985, when one of the appointed attorneys, Jerry Mazzanti, filed a motion to be relieved as counsel because he had since been appointed to serve as Circuit Judge, 2nd Division, 10th Judicial District, effective July 1, 1985. Apparently, no formal court action was taken on this motion in 1985.

The state, on February 24, 1986, filed its motion for an extension of time in which to bring the appellants to trial, alleging it was entitled to an additional 110 days because of the delay caused by the judge’s illness and a congested docket. Appellants objected, claiming those reasons failed to relieve the state’s obligation of providing them with a speedy trial. On March 3, 1986, the court responded by setting a hearing on the state’s motion on May 12,1986, and a trial on the merits of the case on May 14, 1986.

At the May 12th hearing, the court denied the state’s motion for extension and continuance. However, at this same hearing, appellants moved to dismiss, noting that the state was required under A.R.Cr.P. Rule 28.1(c) to bring them to trial within eighteen months from when they were charged and that nineteen months, twenty-seven days had passed since they were charged on September 17, 1984. The court rejected the appellants’ motion, ruling other excludable periods under A.R.Cr.P. Rule 28.3(c) justified a delay, viz., the judge’s illness for three and one-half months and an undesignated time period which resulted from Mr. Mazzanti’s withdrawal as counsel for one of the appellants. After denying both the appellants’ and the state’s motions, the appellants, without waiving their motion to dismiss, moved for a continuance of the May 14th trial date, stating one of the appellants was pregnant and expected to be hospitalized before and on the day of trial. Over the state’s objection, the court continued the trial to September 11,1986, when both appellants were convicted by a jury and each given three-year sentences.

It is undisputed that nineteen months, twenty-seven days had passed from the date appellants were charged and the first trial setting on May 14, 1986. Accordingly, the burden is upon the state to show good cause for an untimely delay in the trial. Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985). The state, citing Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986), concedes the thirty-five day continuance given appellants on September 24,1984, was not excludable because their request did nothing to delay the court in setting a trial date. Also, the state does not argue that any excludable time is justified because of Mr. Mazzanti’s withdrawal as counsel for one of the appellants. See Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982); Divanovich v. State, 273 Ark. 117, 617 S.W.2d 345 (1981); but see also, Norton v. State, 273 Ark. 289, 618 S.W.2d 164 (1981). The state’s primary contention is that the time of delay caused by the illness of the judge and the congestion of the docket was excludable under A.R.Cr.P. Rule 28.3(b) and (c).

We quickly dispose of the state’s reference to docket congestion under Rule 28.3(b) which provides that when the delay is attributable to exceptional circumstances, the court shall state those circumstances in its order continuing the case. Here, the court made no reference by order or its docket that any continuances given were based upon a congested docket resulting from exceptional circumstances, much less when those circumstances might have occurred. See Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10 (1979) and Shaw v. Shaw, 18 Ark. App. 243, 712 S.W.2d 338 (1986). Thus, the state’s argument is narrowed to whether the trial judge’s absence for three and one-half months due to illness is an excludable period under Rule 28.3. We hold it is not.

The Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972) set out criteria by which the speedy trial right should be judged. In doing so, the Court said the rule it was adopting placed the primary burden on the courts and the prosecutors to assure that cases are brought to trial. Stated in other terms, the court further related that a defendant has no duty to bring himself to trial; rather the state has that duty, as well as the duty of insuring that the trial is consistent with due process. Id. at page 527. The Supreme Court then proceeded to adopt what it labeled as a balancing test by which a court must be guided when considering speedy trial cases and identified four factors a court should assess in determining a particular defendant has been deprived of his right to a speedy trial: length of delay, the reason for the delay, the defendant’s assertion of his right and prejudice to the defendant. Id. at page 530. The Court said that none of the four factors was either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial, but, rather, they are related factors and must be considered together with such other circumstances as may be relevant. Justice Powell, writing for a unanimous court, stressed that these factors have no talismanic qualities and that courts must still engage in a difficult and sensitive balancing process. Id. at page 533. In considering the factor of prejudice, the Supreme Court in Moore v. Arizona, 414 U.S. 25 (1973) made it clear that Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial.

Our court, consistent with the principles announced in Barker, has placed the burden on the courts and state to assure a defendant receives a speedy trial. In Norton v. State, 273 Ark. 289, 618 S.W.2d 164, for example, we refused to hold as excludable the period between the recusal of the prosecutor and the appointment of his replacement. We noted the delay caused by the failure to appoint an immediate replacement was not the defendant’s fault; instead, we pointed out that it was the court’s duty to have appointed a substitute attorney for the state. In still another case, Harkness v. Harrison, 266 Ark. 59, 585 S.W.2d 10, we rejected the state’s argument that a congested docket justified a period of delay to be excludable under Rule 28, and, in so holding, we pointed out that no docket entry reflecting the reason for delay had been entered — a requirement under Rule 28.3(b). In addition, we said that Rule 28.3(b) contemplates that a trial judge will regularly call the docket, and if a case is to be continued beyond the time permitted by law, then the reasons must be stated. Again, our decision in Harkness clearly recognizes the court’s duty to bring criminal cases to a speedy trial.

While we have not, until now, been confronted with whether a judge’s absence due to.an illness is good cause for delay, other jurisdictions have, and the weight of authority appears to support the view that the illness or incapacity of a judge does not justify a delay in bringing an accused to trial. Annot., 78 ALR3d 297 (1977). See Newlin v. People, 221 Ill. 166, 77 N.E. 529 (1906); State v. Jennings, 195 N.W.2d 351 (Iowa 1972); People v. Broyer, 394 Mich. 107, 228 N.W.2d 780 (1975); Hadley v. State, 66 Wis. 2d 350, 225 N.W.2d 461 (1975).

The Wisconsin Supreme Court case of Hadley, 66 Wis.2d 350, 225 N.W.2d 461, is particularly instructive because the court there discussed the speedy trial principles set out in Barker and applied them to a situation where the defendant’s trial had been postponed because of the judge’s illness and a delay in appointing another in his place. In considering the factors or criteria in Barker, the Wisconsin Supreme Court, in holding the defendant was denied a speedy trial, found the length of delay was excessive, the delay was attributable to insufficient judicial and prosecutorial manpower and the defendant timely asserted his right to a speedy trial.

We now consider the instant case in light of the factors in Barker. Here, the appellants’ initial May 14th trial date exceeded the eighteen-month limitation time required in Rule 28.1(c) by about two months, and the delay clearly was not the fault of the appellants. Next, from the record before us, neither the trial court nor the state made any effort to obtain another judge to try the appellants’ case, and, indeed, it is unclear whether another judge actually was needed to ensure the case could be tried within the eighteen-month period. The required period, providing for no excludable time, began on September 17,1984, and ended on March 17,1986. As noted earlier, the judge’s period of absence, claimed by the state as excludable, ended on March 14, 1985. The state, still well within the eighteen-month period, filed its motion for extension on February 24, 1986. Obviously, the judge conceivably could have ruled on the state’s motion and tried the appellants’ case prior to the limitation period having run. Instead, the trial court set the state’s motion to be heard on May 12, 1986, and the trial on May 14, 1986 — both dates being outside the eighteen-month period. In sum, the state simply has failed to show why the appellants’ case was not tried within the required time by the regular sitting judge, a special elected judge or one on exchange. See Ark. Const, art. 7, §§ 21,22. Finally, we note that the appellants promptly asserted their rights to a speedy trial at the first opportunity after the eighteen-month period had run — at the May 12th hearing set to hear the state’s motion for an extension. In sum, the foregoing factors, several of which are set out in the Supreme Court’s Barker case, suggest a deprivation of the appellants’ constitutional right to a speedy trial, and while appellants do not specifically point to how they were prejudiced by such a denial, they are not required to make an affirmative demonstration of prejudice. Moore, 414 U.S. at 26.

In conclusion, in view of the principles and criteria set out in Barker, as well as our own rules and case law pertaining to the right of speedy trial, we must conclude the state clearly failed to show in the case at hand how the trial judge’s illness justified a delay in bringing the appellants to trial. Having failed to do so, we are compelled to reverse and dismiss this cause.

Hickman, J., dissents.

       We note that no order or docket entry reflected when Mr. Mazzanti was relieved as appointed counsel, but the trial court found at the May 12,1986, hearing that it had orally directed the other appointed counsel to represent both appellants, thereby substituting him as Mazzanti’s replacement. The record fails to reflect the date when the court relieved and substituted counsel.


source: Caselaw Access Project

author: Per Curiam. Darrell Hickman, Justice,

license: Public Domain

text:
    Mercedes McCAMBRIDGE and Richard L. McCambridge, Executor v. CITY OF LITTLE ROCK; Jess F. Hale; Sgt. Edward Alexander; Little Rock Police Department
    87-352
    742 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered December 14, 1987

      Bryant, Owen & Powell, by: William L. Owen, and Bell, Bilheimer & Crockett, by: C. Richard Crockett, for appellant.
    No response.
   Per Curiam.

We grant the stay as we have done consistently in important cases where serious legal issues are presented to this court. While we may well agree that the photographs requested under the Freedom of Information Act should be made available to the public, this case should be briefed, argued and decided like any important case pending before this court. Therefore, we grant the appellant’s motion to stay pending appeal.

Hickman, Dudley and Hays, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I would deny the stay. The records in question are unquestionably public and to deny the public access at this time violates the Freedom of Information Act.

Dudley and Hays, JJ., join in this dissent.


author: Per Curiam. John I. Purtle, Justice,

text:
    Herbert MALONE v. STATE of Arkansas
    CR 86-206
    741 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered December 14, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Herbert Malone was found guilty by a jury of aggravated robbery, aggravated assault and theft of property. He was sentenced as an habitual offender with eight prior felony convictions to three hundred, forty and eight years imprisonment. The terms were ordered served consecutively. We affirmed. Malone v. State, 292 Ark. 243, 729 S.W.2d 167 (1987). Petitioner now seeks postconviction relief pursuant to Criminal Procedure Rule 37, alleging that his two attorneys at trial and his attorney on appeal were ineffective and that several errors were made by the trial judge in the course of the trial.

Petitioner contends that the trial court erred when it denied his pretrial motion to relieve counsel, sentenced him to three hundred years imprisonment for aggravated robbery which constituted a sentence not within the statutory range for the offense, instructed the jury that the range of punishment for aggravated robbery was up to five hundred years and sentenced him as an habitual offender. He also asserts that his sentence is an unconstitutional bill of pains and penalties.

We first note that the trial court did not instruct the jury that the range of sentences for aggravated robbery was up to five hundred years. (The deputy prosecutor in closing argument asked the jury to return a five hundred year sentence.) The decisions of the trial court to deny the motion to relieve counsel and to sentence petitioner as an habitual offender are not reviewable under Rule 37 since they were matters which could have been presented on direct appeal. Rule 37 does not provide a remedy when an issue could have been raised in the trial court or argued on direct appeal, unless the issue represents a question so fundamental that the judgment of conviction is rendered absolutely void. White v. State, 290 Ark. 77, 716 S.W.2d 203 (1986). Also, the sentence imposed was not a bill of pains and penalties because it was not the product of a legislative enactment which punished the petitioner without benefit of a judicial proceeding. See L. Tribe, American Constitutional Law, § 10-5 (1978).

Unlike the other allegations of trial error, the allegation concerning the length of sentence imposed for aggravated robbery is cognizable under Rule 37.1(c), however, there is no merit to petitioner’s contention that the three hundred year-sentence was in excess of the maximum authorized by law. The jury was accurately instructed that since petitioner was an habitual offender with more than four prior felony convictions, he was subject to an extended term of imprisonment for aggravated robbery of “not less than forty (40) years nor more than life.” Ark. Stat. Ann. § 41-1001.2(a) (Supp. 1985). A sentence of “more than life” under our statutes would be life without the possibility of parole or death, the only penalties more severe than life in prison. There is no provision under Arkansas law or the United States Constitution which prohibits a sentence of a term of years which exceeds the usual life span of human beings.

In a related allegation, petitioner alleges that his attorneys at trial should have objected to the three hundred year sentence. As indicated, such an objection would have been futile.

Petitioner also contends that his attorneys should have objected when an attorney with the United States District Court gave the closing argument at his trial. He contends that counsel should have objected when the attorney was not introduced at the beginning of the trial as being from the United States Attorney’s Office. Petitioner does not explain how he was prejudiced by the attorney’s presence or by the failure to identify him as an assistant United States Attorney. To prevail on an allegation of ineffective assistance of counsel, the petitioner must show that counsel’s performance was deficient in that counsel made an error so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial and produced a result whose outcome cannot be relied on as just. Both showings are necessary before it can be said that the conviction resulted in a breakdown in the adversarial process. Strickland v. Washington, 466 U.S. 668 (1984). Petitioner has not made a showing of prejudice.

Petitioner next states that he was arraigned in federal court and then indicted by a federal grand jury on the charges for which he was convicted in circuit court. The federal indictment was dismissed, and petitioner argues that refiling the charges in state court was improper. He alleges that his counsel should have argued that he was not indicted by a state grand jury and was not properly arraigned in state court. There is no merit to petitioner’s conclusion that he could not be tried in state court after dismissal of federal charges. See Bartkus v. Illinois, 359 U.S. 121 (1959). Further, the record indicates that petitioner was arraigned in state court. He had no constitutional right to have the state proceed by a grand jury indictment. Gernstein v. Pugh, 420 U.S. 103 (1975); see also Hurtado v. California, 110 U.S. 516 (1884).

Petitioner states in conclusory fashion that his counsel would not prepare his case and would not subpoena unspecified witnesses. When an allegation rests on whether witnesses should have been subpoenaed, it is incumbent on the petitioner to name the witnesses, provide a summary of their testimony and establish that the testimony would have been admissible into evidence. See Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). An allegation which is general in nature with no showing of actual prejudice to the defense is not deserving of postconviction relief. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985). Petitioner does not allege that any admissible testimony was omitted by counsel’s failure to subpoena a particular witness.

Petitioner further alleges that the attorney who represented him on appeal was ineffective. He states that the attorney should have brought to this court’s attention: (1) the fact that he was tried in state court after the federal indictment had been dismissed; (2) the lack of arraignment in state court and indictment by a state grand jury; (3) the participation of an assistant United States Attorney at his trial; and (4) the issue of whether his wife’s testimony would have been admissible in light of our decision in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986) . Petitioner himself raised in the trial court the issue of whether he had been arraigned in state court; otherwise, the issues set out by petitioner were not argued to the trial court. Counsel cannot be found ineffective for not raising on appeal arguments which were not raised below. See Rawlings v. State, 284 Ark. 446, 683 S.W.2d 223 (1985); see also Halfacre v. State, 290 Ark. 312, 718 S.W.2d 945 (1986). Although petitioner raised the arraignment issue in the trial court, the record shows that there was an arraignment and he offers nothing to indicate that the issue constituted a meritorious point for appeal. A hallmark of effective appellate advocacy is the process of assessing arguments and focusing on those likely to prevail. Jones v. Barnes, 463 U.S. 745 (1983); Troutt v. State, 292 Ark. 192, 729 S.W.2d 139 (1987) . Petitioner has not shown that his attorney neglected to raise any issue on which he could have prevailed on appeal.

Petitioner has attached to his petition the affidavit of his wife Mary Malone in which she recants her testimony at trial. The affidavit cannot be considered under Rule 37, however, because the Rule provides for collaterally attacking a judgment and was never intended to provide a means to add evidence to the record or refute evidence adduced at trial. McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984).

Finally, we note that petitioner twice attempted to amend this petition. We will permit a petition to be amended in accordance with Rule 37.3(a). Birchett v. State, 291 Ark. 379, 724 S.W.2d 492 (1987). Petitioner’s first motion to amend was denied because it was in essence a response to the state’s response to the original petition which simply restated the arguments in the petition. The second motion to amend consisted of the argument that petitioner had not been properly informed of his Miranda rights. Since the issue asserted by petitioner could have been raised at trial and was not sufficient to render the judgment in his case void, the second motion to amend was also denied. See Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981).

Petition denied.

Purtle and Hays, JJ., dissent.

John I. Purtle, Justice,

dissenting. A prisoner ought not to be ordered to serve more than a lifetime without parole. Three hundred and forty-eight years is cruel and unusual. This sentence should be modified because the statute authorizes a maximum sentence of “life.” We ought to modify this sentence instead of using excuses to uphold it. A fairly casual reading of Ark. Stat. Ann. § 41-1001.2(a) (Supp. 1985) gives the distinct impression that the range of penalty in this case, even with the eight prior felony convictions, is from 40 years to life. After a careful reading the specified range is still between 40 years and life. This court should abide by the statute and our own precedent and reduce this time to life in prison, the maximum allowed by law. See generally Singelton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); and Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). Things are going to get messy around Cummins if prisoners must be there for more than a lifetime.

After the trial court correctly instructed the jury on the range of the penalty, the state requested a 500 year sentence in closing argument. The only reason I can conceive of for this argument and the consequent sentence is a failure to understand the proper application of the statute to the time to be served. In spite of a proper instruction the jury returned a verdict of three hundred forty-eight years, which was accepted by the court in pronouncing sentence. This sentence is no doubt a reflection of the public perception that the Department of Correction and the courts are out of harmony on the length of time a prisoner actually serves in relation to the time sentenced by the courts. Whatever the reason for such unusual sentencing, the courts should abide by legislative enactment and leave the execution of legal sentences to the executive department.

Hays, J., joins in this dissent.

       In practical terms petitioner suffered no prejudice to his status for parole eligibility purposes from the sentence of three hundred years because as a fourth offender, he is ineligible for parole regardless of the length of the sentence imposed. Ark. Stat. Ann. § 43-2830.2(4) (Supp. 1985); Ark. Stat. Ann. § 43-2830.3(B)(5) (Supp. 1985).


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    Willie CHASTAIN, Charles Washington, Dennis Chastain, Mrs. Onyce Young, Thomas B. Jones, Jr., Jean Ann Jones, John Funkhouser and Trustees of Pleasant Hills Baptist Church v. Pat DAVIS or Randy Feierabend, as Agents for Max R. McGinnis, et al.
    87-167
    741 S.W.2d 632
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987

      Charles L. Carpenter, for appellants.

      Jim Hamilton and Francis D. Grumpier, Jr., by: Francis D. Crumpler, Jr., for appellees.
   Jack Holt, Jr., Chief Justice.

This appeal is from an order of the Pulaski Circuit Court annexing the Crystal Hill/ Maumelle Boulevard area of Pulaski County to the City of North Little Rock. The appellants contend the acquisition did not comply with various statutory requirements for the voluntary annexation of territory to a municipality. We disagree and affirm.

The appellees, Pat Davis and Randy Feierabend, as agents of the property owners, filed a petition in Pulaski County Court on February 4, 1986, seeking the voluntary annexation of the Crystal Hill/Maumelle Boulevard area to the City of North Little Rock. This petition was amended on April 8, 1986, correcting the property description in the original petition. The appellants are landowners in the area opposing the annexation. The annexation was approved by Pulaski County Judge Don Venhaus after a public hearing. Appellants appealed to the Pulaski Circuit Court. Following a hearing, the circuit court approved the annexation and entered its order accordingly. Appellants bring this appeal from that decision raising five issues.

Appellants first argue the proponents of a voluntary annexation “cannot rely upon petitions with an incorrect property description”, noting the appellees filed a petition for annexation on February 4, 1986, containing the following property description:

. . . thence turn northwesterly along the west Right-of-Way of Maumelle Blvd. for a distance of 718.0 feet to a point on the south line of the north half of Section 11, Township 2 North, Range 13 West; . . .

The description should have read as follows:

. . . thence turn northwesterly along the west Right-of-Way of Maumelle Blvd. for a distance of 718.0 feet to a point on the south line of the north half of SW14 SEV2 of Section 11, . . . (Emphasis added.)

Appellees subsequently amended their petition, supported by additional signatures of property owners, to correct the property description. The amended petition readopted all allegations and signatures contained in the first petition.

The circuit court found that a majority of the owners of record who own the majority of the land signed the “Petition and amended Petition” and that the “Petition and amended Petition” were right and proper.

Ark. Stat. Ann. § 19-301 (Repl. 1980) provides:
Whenever a majority of the real estate owners of any part of a county, contiguous to and adjoining any city or incorporated town, shall desire to be annexed to such city or town, they may apply by petition in writing to the county court of the county in which said city or town is situated, and shall name the person or persons authorized to act on behalf of the petitioners.

Although the statute does not specifically provide for amendments to a petition for annexation, there is nothing wrong with the court looking to the petition and the amended petition to ascertain whether or not a majority of the owners of record who own the majority of land, have in fact petitioned to be annexed and that the area has been sufficiently identified. Amended petitions for annexation have been considered by this court in the past. Cantrell v. Vaughn, 228 Ark. 202, 306 S.W.2d 863 (1957). In this instance, we find no fault or abuse in the amending of the petition since the area proposed for annexation was not changed or increased. Although the original petition contained an incorrect property description, the map attached thereto, which was also one of the exhibits at trial, properly and sufficiently described the property sought to be annexed. Certainly, the landowners signing the petition could determine from the map the proposed area for annexation. Lee v. City of Pine Bluff, 289 Ark. 204, 710 S.W.2d 205 (1986). The trial court’s findings that the petition and amended petition comply with the statute are not clearly wrong. Lewis v. City of Bryant, 291 Ark. 566, 726 S.W.2d 672 (1987).

Appellants next argue the circuit court’s judgment is void on its face because it repeats ten lines of the property description. The circuit court order approving the annexation repeated the following lines of the property description:

“corner of SE'/4, SE'/4 Section 12 and the NW corner NE'/4 NE'/4 Section 13, Township 2 North, Range 13 West; thence turn southerly along the west line of said NEl/4 NE'A a distance of 1,320.0 feet to the NE corner of the SW'/4 NE'/4 of Section 13; thence turn west along the north line of said SW‘/4 NE'A Section 13 a distance of 1,320.0 feet to the NW corner SW14 NE'A Section 13; thence turn S. 07 ° 08' W. a distance of 492.0 feet; thence turn S. 56 ° .26' W. a distance of 493.0 feet; thence turn N. 50 ° 29' W. a distance of 617.0 feet; thence turn N. 84° 59' W. a distance of 478.0.”

The circuit court’s order could be corrected to delete the error pursuant to Ark. R. Civ. P. 60(a), without harm or prejudice to anyone.

Appellants further contend the appellees failed to meet two statutory requirements for annexation: sufficient notice of annexation and that the petitioning landowners owned a majority of the land to be annexed. On April 17, 1986, notice of the proposed annexation was printed in the Arkansas Gazette. Twenty-five lines of the notice were blanked out in some of the published copies. Nine of the lines were of the summary property description and another ten lines concerned the detailed property description. Appellants claim these mistakes rendered the notice insufficient. The appellees admit the error, but deny that it affected the sufficiency of the notice.

Ark. Stat. Ann. § 19-302 (Repl. 1980) states:

. . . Between the time of the filing of the petition and the date of the hearing, the petitioners shall cause a notice to be published in some newspaper of general circulation in the county; which notice shall be published once a week for three (3) consecutive weeks. . . . The notice referred to herein shall contain the substance of said petition, and state the time and place appointed for the hearing thereof.

An affidavit of James Bates, the manager of the Composing Department of the Arkansas Gazette, stated the printing error in the notice occurred in the first 6000 copies out of 125,000 printed. He further stated that “although it cannot be said affirmatively where such papers might have been delivered, such papers containing the slight error in the legal notice were not to have been delivered in Pulaski County.”

The statute requires notice in the county. Bates testified that the newspapers containing the error in the notice were for delivery outside the county. Therefore, we find no problem with the notice.

Appellants also claim appellees did not prove that the petitioning landowners owned a majority of the land to be annexed. Ark. Stat. Ann. § 19-301 requires a majority of the real estate owners of the land to be annexed to sign the petition. The statute defines the “majority of real estate owners” as “a majority of the total number of real estate owners in the area affected, provided such majority of the total number of owners shall own more than one-half [Vi] of the acreage affected.” See also Smalley v. City of Fort Smith, 239 Ark. 39, 386 S.W.2d 944 (1965).

In the county court, appellees introduced a certificate by Leola Lambert on the behalf of Beach Abstract and Guaranty Co. which stated the petitioners “represent a majority of the total number of real estate owners in area and in number of owners and constitutes over 51 % of the owners and area,. . .” At the circuit court hearing, Lambert was called to testify. Appellants claim her testimony impeached the certificate, leaving the acreage question unproven. That testimony follows:

Q Mrs. Lambert, in the course of your investigation, checking the records, what did you determine as to the percentages involved in this?
A Well, there was, I would say, sixty to seventy percent of the owners, but then I certified there was fifty-one percent.
Q At least fifty-one percent?
A Yes sir.
Q And, out of the owners that signed that petition, were you able to determine what percentage of acreage that they owned in this land, in this area?
A No, because I had no certification as to that, I would say approximately eighty to ninety percent of the property itself.
Cross examination
Q Mrs. Lambert, whát is the total acreage involved?
A I don’t remember, Mr. Carpenter.
Q Could you tell us exactly how many acres they had signatures for?
A Not really, I can’t. I haven’t worked on this, as you know, in about nine months.

Appellants claim since Lambert denied that she certified the acreage question, that she only certified the number of owners and that she guessed that eighty to ninety percent of the property was represented by the petitioners, there was insufficient proof of the acreage question. However, the certificate states the majority requirement was satisfied, and Lambert’s testimony was that a majority of the land proposed for annexation was represented by the petitioners, even though she could not recall the exact figures.

In support of her testimony, appellee introduced Exhibit 2, a map of the proposed annexed area which is color coded showing the landowners who signed the petition and those who did not. The map clearly shows that the majority of the landowners signed the petition. There was ample evidence to support the trial court’s decision. Lee v. City of Pine Bluff, supra.

Appellants’ fourth point on appeal is that the proposed area is not right and proper for annexation. Lands are proper for annexation if they are platted and held for sale or use as municipal lots; whether platted or not, if they are held to be brought on the market and sold as city property when they reach a value corresponding with the views of the owner; when they furnish the abode for a densely-settled community or represent the actual growth of the city beyond its legal boundary; when they are needed for any proper city purpose; and when they are valuable by reason of their adaptability for prospective city uses. Vestal v. Little Rock, 54 Ark. 321, 15 S.W. 891 (1891). Lands sought to be voluntarily annexed must meet the criteria. Cantrell v. Vaughn, supra. If a part of the proposed area does not meet one of these requirements, then the annexation of the entire area is voided in toto. Gay v. City of Springdale, 287 Ark. 55, 696 S.W.2d 723 (1985); City of Little Rock v. Findley, 224 Ark. 305, 272 S.W.2d 823 (1954). Appellants have the burden of proof in showing the area should not be annexed. City of Crossett v. Anthony, 250 Ark. 660, 466 S.W.2d 481 (1971). The circuit court found the lands were right and proper for annexation. We must affirm the trial court’s judgment if there is sufficient evidence to support it. Lee v. City of Pine Bluff, supra.

A general description of the land to be annexed was given in the testimony of Dan Clinton, North Little Rock City Engineer. He stated the proposed area is 1,500 acres. The land varies in contour and makeup. A rock quarry is on part of the land and on another part is the White Oak Bayou which backs up to the Arkansas River. There is some timberland, and some major streets and highways pass through the area. He further stated that White Oak Bayou is a floodway which cannot be developed.

The record contains a memo written by Marie Flickinger from the Pulaski County Department of Planning and Development to Judge Venhaus about the proposed annexation. In that memo she stated: “the description was adequate, it is contiguous to the City, there are pockets left out of the annexation, adjoining rights-of-way are included, all of the area east of 1-430 is now served by North Little Rock Sewer, a new sewer district is being formed to serve the area west of 1-430, the entire area is now being served by the Oak Grove Fire District.” She further stated that “much of the area is floodway or floodplain, any roads across White Oak Bayou would have to be bridged. There is a very low population density through much of the area. City services to much of the area would have to travel by way of County roads.”

Appellants claim the proposed area fails to meet the Vestal criteria in three ways. First, the area has an unusual and unnatural configuration, and as a result there is no real contiguity with the city. Appellants contend the city reaches the proposed area by way of two tiny strips of land: the intersection of 1-430 and Maumelle Blvd., which connects the annexed area with the city only by the highway right-of-way and a narrow wooded strip between Crystal Hill Road and a box like tract on the extreme east side of the annexed area.

We have rej ected the use of tiny strips of land to reach the larger area to be annexed. Clark v. Holt, 218 Ark. 504, 237 S.W.2d 483 (1951); Park v. Hardin, 203 Ark. 1135, 160 S.W.2d 501 (1942). In Clark, the area to be annexed was connected to the city by a strip 50 feet wide and 3,060 feet long which traversed a rough, hilly land. In Park, a strip along a U.S. Highway 4 miles long and xk mile wide was used by the city to reach the proposed area. Such a “shoestring” was not used in this case.

Contiguous lands are those which are not separated from the city by outside land. Clark v. Holt, supra; Vestal v. Little Rock, supra. Clinton testified the land is contiguous and Flickinger stated in her memo that the land was contiguous. Although the land is not contiguous in every spot, there is no requirement that it be completely contiguous.

Second, the appellants claim the proposed area is inaccessible because the area cannot be reached by car without having to drive through part of the county. Clinton and Randy Feierabend, agent for the property owners and a member of the North Little Rock Planning Department, testified they could not drive from their offices in the city to the annexed area without having to go through the county. Flickinger stated the police and fire services would have to go through the county to reach the proposed area for annexation. However, the area is accessible. Clinton testified there are several major streets and highways through the area.

Third, appellants complain the proposed area does not represent the normal growth of the city because it zigzags around the landowners opposed to the annexation and it skips over a populated area lying between the proposed area and the city in order to pick up a less populated area. Appellants further claim the only reason the southern part of the area is proposed for annexation is to satisfy the contiguity requirement.

There is substantial evidence to the contrary. Clinton testified that he was familiar with the growth patterns of the city and there is not much room to expand to the north. The city has room to go east, but the flight patterns of the airport deter that growth. Feierabend testified that the area is one of the fastest growing areas in the county. Richard McGehee, Senior Planner with Metroplan, testified to the population projections for the area. In 1980, the area had a population of 3,297. The projection for the area for the year 2010 is 24,000. The area included in this projection is Maumelle and all the area to the Pulaski County line.

Appellants’ final argument on appeal is that the statutory election procedure must be used in order to annex lands. In light of this court’s decision in Gregg v. Hartwick, 292 Ark. 528, 731 S.W.2d 766 (1987), the appellants withdrew this point in their reply brief.

The trial court’s order of annexation is affirmed.

Hickman and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. I have realized for sometime that cities in Arkansas are pretty well able to annex anything within a hundred miles of the corporate limits, provided they follow the general course of the law. However, until this time I did not realize we were going to release them from the obligation to comply with the general format of the annexation laws.

The mischief in this case is allowing the petitioners to file an amended annexation petition incorporating the signatures of a previous petition that had a defective description of the area sought to be annexed. I will briefly describe what happened.

The petitioner’s original petition for annexation contained a defective description. One call was to a point “on the south line of the north half of section 11, Township 2 north, Range 13 west.” This call is indefinite because the south line of the north half of section 11 is one mile long. In City of North Little Rock v. Garner, 256 Ark. 1025, 511 S.W.2d 656 (1974), the legal description commenced at a point on the northeast city limits and ended at a point on the bank of the Arkansas river where the southeast boundary of the city intersected the river. The opinion by this court stated: “This description does not accurately describe the lands to be annexed since it only describes a line that does not connect to the starting point.” In invalidating the annexation, the court relied on Parrish v. City of Russellville, 253 Ark. 1000, 490 S.W.2d 126 (1973), which voided another annexation because the legal description did not close.

The petitioners realized the defect in the petition and circulated a second one with an accurate geographical description. The problem is that out of the 115 property owners in the area to be annexed, only 57 signed the old petition and only 34 signed the new petition. Twelve of those signing the amended petition also signed the defective petition. Neither petition can stand alone because each contains less than half of the property owners’ signatures in the annexed area. The grave error of the majority opinion is that it allows the second group of petitioners to incorporate the signatures of those who signed the first (defective) petition. It would seem that the balance of the original 57 petitioners either changed their minds about annexation or were not given an opportunity to sign a valid petition. By any standard the counting of duplicate signatures should not be allowed.

The precedent of allowing signatures on a defective petition to be used in calculating the total signatures on a subsequent petition is a step in the wrong direction. Signatures on petitions for formation of improvement districts may now be used as signatures on annexation petitions and signatures commending public officials may be used to impeach them.

The majority relies on Cantrell v. Vaughn, 228 Ark. 202, 306 S. W.2d 863 (1957) as authority for allowing the amendment. That is not the holding of the case. The amendment to the petition for annexation was allowed in county court and was simply a reduction in size of the area sought to be annexed. That case in no shape, form, or fashion even hinted at allowing the petitioners to amend by including names from another petition.

Even cities should be required to follow the format of the law.

Hickman, J., joins this dissent.


author: Jack Holt, Jr., Chief Justice.

text:
    David FOSTER v. STATE of Arkansas
    CR 87-138
    741 S.W.2d 251
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987
    [Rehearing denied January 25, 1988.]

      William R. Simpson, Jr., Public Defender, by: Susan Wilson, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: /. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

David Foster was convicted of rape [Ark. Stat. Ann. § 41-1803 (Repl. 1977)] and sentenced to thirty-five years imprisonment. On appeal he argues that the judge erred in denying his motion for new trial since the prosecuting attorney engaged in prejudicial conduct during the course of the trial. We find no error and affirm.

The victim was raped on August 16, 1986. She positively identified Foster, who was a friend of her daughter, in a photographic lineup six days after the rape and also at trial. One of the state’s medical experts testified that upon examination of the victim approximately four hours subsequent to the rape, he found fresh bruises on her chest and sperm in the vaginal vault. The prosecution’s forensic serologist testified that he found an “A” blood group substance on the vaginal swabs which matched both Foster’s and the victim’s blood group.

During the investigation of the rape, Foster made the following exculpatory statement to Sergeant Carol Kimble of the Pulaski County Sheriffs Department: “I have never been in the house with [the victim].” At trial, this statement was not introduced into evidence but was referred to by both the defense and prosecution when questioning various witnesses. Later, in his closing argument, defense counsel stated:

What did the police know about the case? What real or physical evidence has been provided that in any way connects the defendant to the commission of this crime? The police know nothing. They took some statements. They took a statement. from the Defendant. He was arrested on August 21st, and they took a statement from him. Is there anything inconsistent in that statement with what was said today? If there had been, you’d have heard about it.
In the state’s closing rebuttal, the prosecutor responded:
Mr. Simpson also states that David gave his statement back to the police in August, 1986. Well, if he thought it was that important, and it was so consistent with David’s testimony, don’t you think you would have seen it, too? It’s not, and you heard me ask David —

Defense counsel interrupted with an objection, which was sustained by the trial court. The defense then moved for a mistrial, which the trial court took under advisement, while at the same time admonishing the jury:

Ladies and gentlemen, a few moments ago during closing statements counsel made a reference to your not seeing a certain statement. The introduction of evidence in Court is governed by law. You will disregard that statement of counsel and will not give it any consideration or any weight during your deliberations.

At the conclusion of trial, the motion for mistrial was denied, and the jury returned its verdict of guilty. Foster filed a motion for a new trial, which was denied by the trial court. It found that any error committed was cured by the admonition. We agree.

The decision whether to grant a new trial is left to the sound discretion of the trial judge and will not be reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). Unlike the statement in Timmons v. State, 286 Ark. 42, 688 S.W.2d 944 (1985), we cannot say with any degree of certainty that the error of trial counsel was prejudicial to Foster. An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). What little prejudice that may have resulted from the prosecutor’s statement was cured by the trial court’s admonition.

Affirmed.


text:
    Michael HUDSON v. STATE of Arkansas
    CR 87-153
    741 S.W.2d 253
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987

      Sanders & Hill, P.A., for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Michael Hudson, pleaded guilty to three charges of possession and delivery of a controlled substance and was sentenced to five years imprisonment on each of the first two counts and four years on the third count, a total of fourteen years with the terms to run consecutively. Later, Hudson petitioned for post-conviction relief under Ark. R. Crim. P. 37 on the grounds of newly discovered evidence. The trial court granted a hearing on his petition and denied relief. From this hearing, Hudson appeals.

Since the record contains no new evidence, it can only be assumed that Hudson’s claim of “newly discovered evidence” is embedded in his allegations that his attorney was incompetent for failing to investigate and determine the existence of physical evidence (LSD and marijuana) and also for failing to explore and discover improper procedures utilized by police in maintaining a chain of custody of evidence. Hudson further claims that he did not voluntarily plead guilty to the charges as he misunderstood the application of the “Habitual Criminal Act” to his situation. We find these arguments without merit.

Hudson has the burden of overcoming the presumption of his counsel’s competence. Franklin v. State, 293 Ark. 225, 736 S.W.2d 16 (1987). Muck v. State, 292 Ark. 310, 730 S.W.2d 214 (1987). He must demonstrate that there is a reasonable possibility that but for counsel’s errors, he would not have pleaded guilty. Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986). See also Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986). An appellant who enters a guilty plea “will have difficulty proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged.” Franklin, supra.

Hudson’s claim that his attorney’s conduct in this case was incompetent is without basis. First, the record of the evidentiary hearing reveals that his counsel did view the physical evidence. After a fire at the jail where the evidence was stored, which Hudson later admitted starting, his attorney asked to see the evidence. Both his counsel and the prosecutor testified at the hearing that the evidence was then presented to Hudson and counsel for viewing prior to plea bargaining. After seeing the evidence and the state’s file, Hudson pleaded guilty. Although Hudson testified only a drug analysis was shown, the trial judge was not required to believe him, especially since he had an interest in the outcome of the proceedings. Huff, supra.

Additionally, we do not see how Hudson was prejudiced by his counsel’s alleged incompetence in failing to investigate the method used by the police to maintain a chain of custody. Pursuant to the procedure that the jail was using at the time, tagged evidence was kept in a locked closet before and after transport to the state crime lab for analysis. Although the police did not keep an inventory of the evidence, there was no proof presented that the evidence was tampered with or that there were other suspicious circumstances which might have caused a break in the chain of custody. Johnson v. State, 291 Ark. 260, 724 S.W.2d 160 (1987).

Hudson also argues that his guilty plea was not voluntary because he was given incorrect information regarding the “Habitual Criminal Act.” He testified at the hearing that his counsel and the prosecutor falsely told him that if he were found guilty under this Act, he would by law receive twenty years and a double sentence on each charge. He was also told all the sentences would automatically run consecutively. After plea bargaining, Hudson received the minimum sentence for each offense without the application of the enhancement provisions provided by statute. While it is true that the risk of a greater sentence might influence a defendant’s decision to plead guilty, Hudson’s testimony was not substantiated. In fact, the prosecutor testified that the “Habitual Criminal Act” was never part of the plea bargaining process. The trial court is not required to accept Hudson’s version. Huff, supra.

This court will not reverse a trial court’s ruling denying Rule 37 relief unless the findings of the trial court are clearly erroneous. Stephens v. State, 293 Ark. 231, 737 S.W.2d 147 (1987). Under the circumstances, we cannot say that the trial court erred in denying Hudson’s request for relief.

Affirmed.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Gordon L. CUMMINGS v. CITY OF FAYETTEVILLE, Arkansas
    87-234
    741 S.W.2d 638
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987

      Gordon L. Cummings, for appellant.

      James N. McCord, City Att’y, for appellee.
   Darrell Hickman, Justice.

Gordon Cummings, a Fayetteville lawyer, filed a suit for a declaratory judgment naming the City of Fayetteville as the interested party. The suit was to declare Ark. Stat. Ann. § 19-718 (Repl. 1980), which governs the recall of city directors, unconstitutional as a violation of the police powers of the state and Amendment 7 to the Arkansas Constitution. The attorney general was notified of the lawsuit pursuant to Ark. Stat. Ann. § 34-2510 (Repl. 1962), but declined to intervene. We affirm because we find no controversy; the appellant is simply asking for a legal opinion.

Cummings alleged that he had prepared a recall petition against three directors of the City of Fayetteville, but that to obtain a recall election, he would have to have 8,616 signatures, 26 signatures more than people who voted in the election and actually 42 % of the registered voters. Attached to the complaint is a blank petition for recall, stating that the undersigned, qualified voters of Fayetteville seek the recall and removal of Jeremy Hess, Marilyn Johnson, and Ernest Lancaster from the city board of directors. No signatures were obtained, and no allegation is made that any attempt was made to obtain any signatures. Furthermore, there was no allegation that any or all of the directors had held office for more than six months, which is required by Ark. Stat. Ann. § 19-718, before a director can be subject to recall.

None of the directors named in the blank petition were made parties to the suit, although they were ostensibly the target of Cummings’ action and clearly have interests paramount to that of the city. Actually, Cummings did not specifically allege that he wanted to recall the directors. The complaint simply states that the statute should be declared unconstitutional. No pleading states that anyone wants these directors removed. We cannot manufacture facts.

The City of Fayetteville answered and the parties stipulated to the number of registered voters within the city, which is 20,292, and to the votes at the last election, which were determined to be:

Ward 1, Position 1:
Ernest E. Lancaster votes received 5,215
Joe Gaspard votes received 2,990
Total votes cast for Position 1 8,214
Ward 2, Position 2:
Bill Martin votes received 4,906
Mort Gitelman votes received 2,651
Marlene Ray votes received 1,014
Total votes cast for Position 2 8,571
Ward 3, Position 3:
Russ Kelley votes received 5,190
Bill Isaacs votes received 2,649
7,839
Total votes cast for all candidates for directors — 24,615.

The trial judge granted the city’s motion for summary judgment. Cummings brings this appeal but does not challenge the court’s determination that Amendment 7 is not violated by the statute. His single point on appeal is that the trial court was wrong in finding that the statute was not arbitrary and in violation of the police powers of the Arkansas Constitution.

It is our judgment that Cummings actually seeks a legal opinion from us rather than the resolution of a controversy. In Andres v. First Arkansas Development Finance Corp., 230 Ark. 594, 324 S.W.2d 97 (1959), citing Anderson, Anderson on Declaratory Judgments § 187 (2d ed. 1951), we adopted certain requirements precedent to a declaratory judgment, which follow:

1. there must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it;
2. the controversy must be between persons whose interests are adverse;
3. the party seeking declaratory relief must have a legal interest in the controversy; in other words a legally protectable interest; and
4. the issue involved in the controversy must be ripe for judicial determination.

No attempt was made in this case to obtain a single signature. While it may be that 8,000 signatures is a large number to obtain, by no means is it impossible. It might not even be difficult, depending upon who and how many persons seek the action sought in the petition. Indeed, Cummings did not address below what would happen to his “recall” if he prevailed. Undoubtedly, the result would be that no recall could be made of a city director. So, we question whether he has established he has a case.

In Cummings’ complaint, he states he wants the court to declare the statute unconstitutional. In his brief he argues to us that the statute should be declared unconstitutional “and the legislature required to either provide no recall petition provisions or to pass a new recall petition signature requirement that is reasonable in number.” Of course, we have no power to direct the legislature to pass any law. The appellant’s brief, while referring to several states which have recall laws, fails to discuss the power of the state to regulate elections, and how this power may differ in regard to ordinary elections and the recall of public officials. Obviously, a state can place some extra burdens on those who seek to recall duly elected officials during their terms of office.

This is an issue of public interest that deserves the participation of the parties whose interests are directly at stake. They have reason to make convincing arguments. We do not have to consider arguments on appeal that are unsupported by convincing authority, unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

The appellant makes several theoretical arguments. For example, he argues that if all registered voters participated in the election of the three directors, the signatures of 105 % of the registered voters would be required to effect a recall election. In Andres v. First Arkansas Development Finance Corp., supra, we quoted further from Anderson, Anderson on Declaratory Judgments § 187 (2d ed. 1951), as follows:

The Declaratory Judgment Statute is applicable only where there is a present actual controversy, and all interested persons are made parties, and only where justiciable issues are presented. It does not undertake to decide the legal effect of laws upon a state of facts which is future, contingent or uncertain. A declaratory judgment will not be granted unless the danger or dilemma of the plaintiff is present, not contingent on the happening of hypothetical future events; the prejudice to his position must be actual and genuine and not merely possible, speculative, contingent, or remote.

The statute in question may be ridiculous in some instances and easily subject to challenge. A lot of laws may fall in that category, but we review them in a lawsuit. We conclude that the appellant has demonstrated he has an argument with the legislature, but not one that amounts yet to a case or controversy that we should decide.

Therefore, the judgment is dismissed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent primarily to point out the absurdity of Ark. Stat. Ann. § 19-718 (Repl. 1980). In my opinion the drafter of § 19-718 either slipped up or had an unusual sense of humor. Section 19-718 provides for the removal of a city director by first requiring that a petition demanding the election of a successor be signed by thirty-five percent of the number of ballots cast for all the candidates for directors at the preceding primary election.

It seems to me that § 19-718 meant to require thirty-five percent of the voters at the last primary election to sign a petition before a recall election could be held because thirty-five percent of the total number of ballots cast might be impossible. For example, if a city had one thousand voters and they all voted for five different positions in the last election, the total votes cast would be 5,000. Thirty-five percent would equal 1,750 signatures. Under such circumstances it would be impossible for a recall petition to succeed.

In the present case the § 19-718 petition requirement is not impossible, but it does require more signatures on the recall petition than there were voters in the preceding election. The highest total of votes in the city directors race was 8,571 for position two. This constituted the greatest number of voters in the entire election. The total number of ballots cast in the entire election for position one, two, and three was 24,624. Thirty-five percent of the total votes equals 8,616, which is forty-five more votes than the total electors voting in the election and at least 3,400 more votes than was received by either of the city directors.

This is a clear demonstration that the requirement that signatures for a recall vote shall equal at least thirty-five percent of the total votes cast in the city director’s election is arbitrary, capricious, and not consistent with a democratic form of government. The statute discourages and even prevents the citizens from exercising their rights to control their government.

In my opinion the General Assembly should correct this obvious inequity of the law. Thirty-five percent of the highest votes cast in the previous election for any one position for the board of directors, as is required in Ark. Stat. Ann. § 19-717 (Repl. 1980) to initiate a petition to refer an ordinance to a popular vote, is a more reasonable and just requirement.


author: Darrell Hickman, Justice.

text:
    Lindy McLeod INDERRIEDEN, Executrix of the Estate of Louise Carter McLeod, Deceased v. Ralph W. PHILLIPS, Jr., et al.
    87-243
    741 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987

      Denver L. Thornton and David E. Smith, for appellant.

      Laser, Sharp & Mayes, P.A., for appellee.
   Darrell Hickman, Justice.

This is a personal injury case. The jury found that the appellee, Ralph W. Phillips, Jr., was not liable for the injuries suffered by Louise McLeod as a result of an accident on December 20, 1984. Mrs. McLeod later died from other causes.

Three arguments are made on appeal: (1) the court erred in giving an instruction on intoxication; (2) the verdict was not supported by substantial evidence; and (3) the court erred in directing a verdict for Diane Phillips and Plaza Towers Package Store, which she and her husband Ralph own. The contentions are meritless; the case was essentially a factual dispute which the jury decided against the appellant.

The accident occurred about dark on the evening of December 20, 1984, near Plaza Towers, an apartment on West Markham Street in Little Rock. Ralph Phillips, who operates the Plaza Towers Liquor Store with his wife, was leaving to buy supper. He backed out of his parking space in front of the store and ran over the appellant who was walking in the parking lot. She was apparently returning to her apartment from the bank across the parking lot. Mr. Phillips said he looked behind him but saw no one. Mrs. McLeod, who testified by deposition, said he simply backed into her. She said:

Well, I was walking where everybody walked out there, kind of the street, and I was going to the side door to go in to go up to my apartment. And when I got even with Ron’s truck, just as I got behind it, he backed out and hit me.

There was evidence that Mrs. McLeod was intoxicated. Mrs. Janet Wilson, a nurse who arrived immediately after Mrs. McLeod was injured, said Mrs. McLeod had been drinking and was drunk. The police officer who investigated the accident said he smelled alcohol on Mrs. McLeod’s breath. There was also evidence that Mrs. McLeod was treated for withdrawal from alcohol when she was hospitalized.

Mrs. McLeod offered evidence that she was not an alcoholic, and she denied having anything to drink that day. But it was for the jury to resolve that issue and to decide if indeed alcohol was a contributing cause or the cause of the accident. The court was not wrong to instruct the jury on intoxication since it could consider intoxication in arriving at a decision.

The same answer applies to the second argument. It was purely a fact question.

Since the jury found Mr. Phillips not liable, the third argument is moot.

Affirmed.

Glaze, J., not participating.


author: John I. Purtle, Justice.

text:
    Charles Wayne DYKES and Mabel Dykes v. Lucille DYKES and the Estate of John R. Dykes
    87-285
    741 S.W.2d 256
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987

      James E. Smedley, for appellants.

      Walter A. Hale, for appellees.
   John I. Purtle, Justice.

The probate judge dismissed the appellants’ contest of the will of John R. Dykes. The appellants are the son and the mother of the decedent. For reversal the appellants argue that Charles Dykes was a pretermitted child pursuant to Ark. Stat. Ann. § 60-507(b) (Repl. 1971) and therefore entitled to inherit as though his father had died intestate. We hold that the probate court correctly applied the law to the facts in this case.

The key provision in the decedent’s will stated: “My children know that my wife and I love them dearly, and I am certain that they realize that she will dispose of any property of mine in a manner which is consistent with the love and affection we feel for the children.” The key provision of Ark. Stat. Ann. § 60-507(b) defines a pretermitted child as one “whom the testator shall omit to mention or provide for, either specifically or as a member of a class . . . .” There can be no doubt, and the appellants concede, that the children were mentioned as a class. Thus the argument for reversal is that the children were pretermitted because the testator did not provide for them in his will.

We considered the question of pretermitted children in the case of Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), wherein we stated: “The purpose of this statute is not to interfere with the right of a person to dispose of his property according to his own will, but to avoid the inadvertent or unintentional omission of children (or issue of a deceased child) unless an intent to disinherit is expressed in the will.” It is readily apparent that the quoted provision of the will in the case before us mentions the children as a class. The statute in question directs that the children shall take as though the decedent had died intestate only when the testator fails to mention or provide for them, specifically or as a class. The statute does not permit children to take against the will simply because the testator failed to make provision for them in the will; if the testator mentioned the children, specifically or as a class, the statute does not apply and the children are not pretermitted. See also Brown v. Nelms, 86 Ark. 368, 112 S.W. 373 (1908).

The testator had a right to dispose of his property in any manner he deemed appropriate. We do not deem it necessary to discuss the question in further detail because the testator clearly mentioned his children as a class. Therefore, Charles Dykes is not entitled to inherit as though his father had died intestate.

Affirmed.