author: David Newbern, Justice.

text:
    DIXIE FURNITURE COMPANY and Dixie Realty Company v. Charles D. RAGLAND, Revenue Commissioner, Revenue Division Department of Finance and Administration
    89-45
    776 S.W.2d 357
    Supreme Court of Arkansas
    Opinion delivered September 25, 1989

      W.G. Dinning, Jr., for appellant.

      John H. Theis, Joe Morphew, Philip Raia, Robert L. Jones, William E. Keadle, Ricky L. Pruett, and David Kaufman, by: Cora L. Gentry, for appellee.
   David Newbern, Justice.

This appeal is from the chancellor’s decision that Charles D. Ragland, Revenue Commissioner, properly assessed a penalty upon the appellants, Dixie Furniture Company and Dixie Realty Company, for failure to file quarterly estimated tax returns. The issue is whether the failure to file the estimated tax returns resulted in a “deficiency” upon which a penalty could be assessed even though the basic tax due was paid upon filing an annual return. The penalty in question is one assessed for a deficiency resulting from intentional or negligent disregard of tax rules or regulations. We affirm the chancellor’s decision that there was a deficiency. On cross-appeal we reverse his decision that, due to lack of notice to the taxpayer, the penalty should not have been applied for one of the tax years at issue.

During the years in questions here, corporate taxpayers which anticipated owing more than $100 in income tax to the State of Arkansas were required to file an estimated tax declaration not later than the 15th day of the fifth month of the taxpayer’s tax year. Ark. Code Ann. § 26-51-911 (1987). A corporation which had filed such a declaration was required to estimate not less than 70% of the final tax due. Act 132 of 1965. The requirement has since been raised to 90%. Ark. Code Ann. § 26-51-912 (Supp. 1987). The estimated tax could be paid with the filing of the declaration or in quarterly installments. Ark. Code Ann. § 26-51-913 (1987). Failure to make an estimate results in a penalty of one-half of one percent per month, or fraction thereof, on the underestimate. § 26-51-912.

Arkansas Code Ann. § 26-i 8-208 (4) (Supp. 1987) provides:

If any part of a deficiency in taxes is determined to be due to negligence or intentional disregard of rules and regulations. . .or any state tax law, then the director shall add a penalty of ten percent (10 %) of the total amount of the deficiency . . .

A “deficiency” is defined as follows in Ark. Code Ann. § 26-18-104(15) (1987):

“Tax Deficiency” or “deficiency” means the amount by which the tax imposed by any state tax exceeds the excess of the sum of:
(A) The amount shown as the tax by the taxpayer on his return if a return was made by the taxpayer; plus
(B) The amounts previously assessed, or collected without assessment, as a deficiency; ....

The appellants, collectively referred to here as “Dixie,” paid their corporate income taxes annually. Mr. Lewis, the president of both companies, testified that for several tax years he paid the tax due plus the one-half of one percent penalty for failure to file a declaration of estimated tax.

Mr. Ward, who was employed by the state as a corporation income tax auditor, testified that he determined that Dixie was liable for the 10% penalty in 1984. He concluded the failure to estimate was intentional because Dixie had been assessed the one-half of one percent penalties in previous years. Dixie refused to pay the 10 % penalty for 1984 and subsequent years, and brought this action to enjoin the collection of it.

The chancellor concluded there was no factual dispute. Mr. Lewis testified that he had helped prepare the Dixie returns prior to 1984, and he was aware that the companies were to file estimated tax returns and that he was to pay a penalty for failure to do so.

1. Penal statutes

In their first point, Dixie argues that it was not the intention of the general assembly to assess two penalties for violation of one statute. The only argument made is that laws imposing penalties are to be strictly construed, citing the dissenting opinion in Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980). While we agree in principle with the statement that penal laws are to be construed strictly, Dixie has given us neither convincing argument nor citation of authority which would allow us to expand that general proposition to say that the general assembly may not impose two penalties for violation of one statute.

2. Deficiency

Dixie’s second argument is that there was no deficiency. The taxes and one-half of one percent penalties were paid. The commissioner argues that there was a deficiency resulting from Dixie’s failure to declare and pay its estimated taxes, and thus it was proper to assess the additional penalty upon 70% of the ultimate annual tax liability.

We agree with the chancellor’s conclusion that an estimated tax declaration is a tax return, Ark. Code Ann. § 26-18-104 (11) (1987), and a deficiency occurs when the amount of the tax imposed exceeds the amount shown by the taxpayer on his return. Dixie was required to estimate at least 70% of its tax liability and to pay in the manner described in § 26-51-913 (1987) prior to filing its final return.

“It is a general rule of construction that statutes establishing procedures for collection and assessment of taxes will be construed in favor of the government.” Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985). Although the language of § 26-18-104(15) defining a deficiency as the amount which “exceeds the excess” is obtuse, it includes the difference between the amount of the “tax imposed,” which, at the time the declaration should have been made, was 70 % of the ultimate tax due, and zero. While the reference in § 26-18-104 (15) to the taxpayer who fails to file a return is oblique at best, we are unwilling to hold that the term “deficiency” refers only to failures on the part of taxpayers who file returns. Such a conclusion would not implement the intent of the general assembly and would result in an absurdity. We will not interpret legislation in a manner giving rise to such a result. Ragland v. Alpha Aviation, supra; Carter v. Bush, 283 Ark. 16, 677 S.W.2d 837 (1984).

3. The cross-appeal

The chancellor held that the first 10 % penalty assessed against Dixie was improper because the commissioner had not given Dixie a direct notice or warning that the penalty could be anticipated if it continued to decline to file the estimated tax declarations. We reverse the decision in this respect because it is clear that Mr. Lewis knew of his obligation to file the declaration and pay the amounts when due. It is undisputed that he knew of his obligation and intentionally disregarded it. Neither Dixie nor the chancellor has cited any law requiring the commissioner to give the taxpayer specific notice of the prospect of a penalty being imposed.

Affirmed on appeal; reversed and remanded on cross-appeal for entry of an order consistent with this opinion.


source: Caselaw Access Project

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

license: Public Domain

text:
    Dwight OWENS v. STATE of Arkansas
    CR 88-156
    777 S.W.2d 205
    Supreme Court of Arkansas
    Opinion delivered September 25, 1989

      Smith, Stroud, McClerkin, Dunn & Nutter, by: W. David

      Carter, for appellant.

      Steve Clark, Att’y Gen., by: David B. Eberhard, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of capital murder for the death of L.D. “Buddy” Perkison. Appellant was accompanied by Ray Charles Eason when they robbed Perkison’s gas station in Buckner, Arkansas, in Lafayette County, and during the robbery, Eason repeatedly stabbed Perkison resulting in his death. Appellant was tried separately and was sentenced to life imprisonment. In this appeal, he raises six points for reversal.

Appellant first contends that, based upon an alleged violation of A.R.Cr.P. Rule 8.1, the trial court erred in denying his motion to suppress his statement. Rule 8.1 provides that an arrested person who is not released by a citation or by lawful manner shall be taken before a judicial officer without unnecessary delay. This court has stated that Rule 8.1 is mandatory, not discretionary, and that while a violation does not call for dismissal of the charges, it does call for a suppression of the in-custodial statement. Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981). Our review of the law and record reveals no violation of Rule 8.1.

In Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), the court adopted a three-part test to determine when a statement should be excluded upon a violation of Rule 8.1: (1) the delay must be unnecessary; (2) the evidence must be prejudicial; and (3) the evidence must be reasonably related to the delay. In Duncan, we granted the defendant’s motion to suppress his incriminating statement because the prosecutor and law enforcement officers deliberately (and for no reason) held Duncan incommunicado from about noon on Tuesday, March 5, 1985, until late the following Friday night — a three and one-half day period. Duncan initially gave only exculpatory statements until he finally confessed late on Friday. On those facts, we concluded the state violated all of the three-part test the court adopted in Duncan.

Here, while appellant was detained a two and one-half day period before giving his inculpatory statement and a three and one-half day period before being taken before a judicial officer, those are the only similarities between the situation before us now and the facts in Duncan. In the cause at hand, the appellant was intoxicated when he was arrested in a bar at 2:00 a.m. on Saturday, June 27, 1987. The record reflects that the appellant was never kept from his family, friends or an attorney and that he had been mirandized on two separate occasions, viz., when he was first incarcerated in the Lewisville jail in Lafayette County on June 27 and at 10:00 p.m. on the following Monday at the Columbia County Jail in Magnolia, where he had been taken for safekeeping. It was when he voluntarily waived his rights on Monday that the appellant offered his confession. Before his statement on Monday, appellant had never been interrogated; nor had he given a statement of any nature. From the record, an arraignment hearing apparently had been scheduled for appellant before the Lafayette County Circuit Court to be held on Tuesday, June 30, 197 — which was the day after the appellant volunteered his statement to officers while he was still incarcerated in Columbia County on Monday, June 29.

We are unable to say that, based upon the facts presented here, the trial court was wrong in ruling the three and one-half day period of delay between appellant’s arrest and arraignment was reasonable. First, appellant was arrested and held over a weekend period. In Brown v. State, 276 Ark. 20, 631 S.W.2d 829 (1982), we held Rule 8.1 was not violated when a defendant was arrested late on a Friday and held through the weekend before he was able to be taken to a magistrate on the following Monday morning. As previously noted, appellant here was arrested early Saturday morning and the earliest he could have been arraigned was on the following Monday. Furthermore, unlike in Duncan, the record here reflects the appellant was not held incommunicado and denied access to family members, friends or an attorney.

Although appellant was first given his Miranda warnings in Lewisville immediately after his arrest, the officers decided not to interrogate or accept any statement given by him because of his intoxicated state. For appellant’s own safekeeping, the officers opted to take appellant to the Columbia County jail in Magnolia where he stayed throughout the balance of the weekend. The following Monday the officers returned to Magnolia to mirandize the appellant once again. At this time, the appellant volunteered and rendered his incriminating statement. Sometime during the time these events and circumstances were taking place, Judge Purifoy had also been contacted so as to arrange an arraignment hearing to be held in Lafayette County — where the robbery and homicidal act occurred. In view of the circumstances and events surrounding appellant’s arrest, we have no hesitancy in holding that the time between his arrest and arraignment was necessary and that the confession he gave did not result from any undue delay caused by the state.

Appellant’s next two arguments concern whether the trial judge erred when he failed to sequester the jury and when he denied appellant’s motion for new trial because of jury misconduct. His claim regarding jury misconduct concerns a juror, Mary Dehan, who, appellant claims, had improperly discussed appellant’s case with others after she was selected but prior to the actual trial. In arguing this point, appellant asserts that Dehan, when discussing appellant’s case with others, revealed her previously concealed opinion as to appellant’s guilt. We disagree.

Concerning appellant’s claim as to Dehan, he presented post-trial testimony by Shirley Wewer who stated that sometime after Dehan was selected as a juror and prior to trial that Dehan appeared in a beauty shop, and while there, Dehan expressed that she was surprised at appellant’s lack of emotion and that she felt “[appellant] was involved with the crime.” Even if we were to accept appellant’s contention that Dehan’s remarks reflected her pre-conceived opinion as to appellant’s guilt, we note that appellant never raised this issue until his motion for new trial, which was filed long after trial. In Hendrix v. State, 298 Ark. 568, 768 S.W.2d 546 (1989), we pointed out that a claim of jury misconduct raised for the first time in a motion for a new trial must be accompanied by an affirmative showing that the defense was unaware of the comments until after the trial. To allow otherwise would permit a defendant, privy to asserted jury misconduct during the trial, to await the outcome of the trial before investigating or pursuing such allegations further. In the present case, we are unaware of when the appellant first became aware of the remarks now attributed to Dehan.

Regardless of appellant’s failure to make an affirmative showing as to juror misconduct, we simply disagree with appellant that the comment attributed to Dehan was prejudicial. No one, including appellant, ever claimed he was not “involved” in some manner with the crime. To the contrary, appellant was a participant with Eason in the robbery. The major issue at trial became whether the appellant actually committed or in any way solicited, commanded, induced, procured, counseled or aided in Perkison’s death. In sum, Dehan, on voir dire, indicated her willingness to keep an open mind as to appellant’s guilt or innocence until after she heard the evidence, and we do not believe her willingness to do so was dispelled by the comments attributed to her — even assuming those comments were actually made at the time the appellant alleges.

Appellant also attempts to rely on the comments attributed to Dehan as being an example of why the trial judge should have sequestered the jury. Of course, the decision of whether or not to sequester the jury is left to the discretion of the trial court and that decision will not be disturbed in the absence of a clear showing of prejudice. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26 (1983). Appellant simply fails to show any prejudice in this cause.

Appellant next argues that his equal protection rights have been violated by the state’s use of peremptory challenges to strike black jurors. In this case, appellant is a black male and the victim was a white male. We find appellant’s contention meritless.

In Ward v. State, 293 Ark. 88, 722 S.W.2d 728 (1987), we stated that a prima facie case of discrimination in the selection of jurors could be made by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from jury venires, or (3) showing a pattern of strikes, questions, or statements by a prosecuting attorney during voir dire.

Unlike the all-white jury in Ward, the jury in this case included two black jurors. We note that when the two black jurors were accepted and seated to serve on the jury, the prosecutor still had two peremptory challenges to employ. The prosecutor here also used only two peremptory challenges to strike black jurors while he used six to excuse white jurors. In challenging the two black jurors, the prosecutor struck one because the juror had been dozing and the other was excused because of his view regarding the death penalty. The record in this case falls far short of any showing of discrimination.

In his fifth point for reversal, the appellant appeals from the trial court’s denial of his motion for a directed verdict. This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Boren v. State, 297 Ark. 220, 761 S.W.2d 885 (1988). On review of a denial of a motion for a directed verdict, the appellate court considers the evidence in the light most favorable to the appellee and considers only testimony in support of the verdict. Id. This court’s responsibility is to determine whether the verdict is supported by substantial evidence, or whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Id.

The applicable part of the capital murder statute provides that a person commits capital murder if:

acting alone or with one (1) or more persons, he commits or attempts to commit. . . robbery . . . , and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; (Emphasis added.)

Ark. Code Ann. § 5-10-101 (a)(1) (Supp. 1987). A defendant is provided an affirmative defense under this section where the defendant was not the only participant if, “the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission.” Ark. Code Ann. § 5-10-101 (b) (Supp. 1987). The defendant has the burden to prove this affirmative defense by a preponderance of the evidence, but that a burden does not arise until the state has met its burden of proof as to the elements of the offense. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984).

Appellant, in his confession, stated that immediately prior to robbing Perkison’s business, Eason had showed appellant a kitchen knife. At that time, both Eason and appellant discussed robbing Perkison’s store and the post office. Witnesses identified Eason and appellant as two men they saw in the vicinity of Perkison’s store at the time Perkison was killed. In his statement, appellant admitted that he joined Eason in robbing the decedent’s store, and while Eason repeatedly stabbed Perkison, appellant took money from the business’s cash register. After appellant and Eason robbed the store, both changed their clothes. Appellant admitted he changed his shirt and pants and wiped off his shoes and then put on another pair of tennis shoes. Evidence presented at trial reflected that human blood was found on the cuff and leg of blue jeans owned by the appellant. The state also firmly proved that Mr. Perkison’s death resulted from the wounds he sustained when Eason and appellant robbed the store.

Although the appellant does not seriously challenge the sufficiency of the evidence concerning the robbery or Perkison’s death resulting from it, he still contends that his affirmative defense to the capital murder charge was shown because the state’s evidence, including appellant’s confession, reflects that appellant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel or aid in its commission. We note, at this point, that the appellant offered no evidence of his own to prove his affirmative defense.

We have held that a defendant is required to prove an affirmative defense by a preponderance of the evidence, and the question as to which way the evidence preponderates is primarily a jury question. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979). An affirmative defense is established as a matter of law only if there are no factual issues to be resolved by the trier of fact. Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978).

Appellant attempts to rely on his confession and the testimony given by the state’s witnesses when arguing that he sufficiently proved he did not commit or participate in the act of killing Perkison. He argues that the great weight of the credible evidence shows that he did not stab Perkison or in any way aid in his murder. We cannot agree.

First, we note that credibility is for the jury to decide, see McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989), and while appellant asserts that only one reasonable inference can be made which reflects Eason solely caused Perkison’s death, we believe the proof, at the very least, shows the appellant counseled and aided in killing the decedent. In so stating, we note that the definition of counsel includes the urging of the adoption of a course of action or the recommendation of a plan. The Random House Dictionary of the English Language (2nd ed. 1987).

As previously mentioned, appellant and Eason (by appellant’s own statement) planned to rob a store in Buckner and had discussed Perkison’s store and the post office. While going to Buckner, Eason showed a knife to appellant, and it can reasonably be inferred that appellant knew a lethal weapon would be employed in the planned robberies. Appellant actually dissuaded Eason from robbing one store in Buckner because a lady and baby were present. Instead, they decided to rob Perkison who was alone in his store. Based upon these facts, a jury could reasonably infer that the appellant planned or counseled with Eason to participate in a robbery which appellant knew would involve use of a lethal weapon. Appellant even redirected the robbery from another store to Perkison’s store because Perkison was alone at the time. Appellant’s confession revealed no suggestion that he was surprised Eason repeatedly stabbed Perkison, but instead appellant merely consummated the robbery by taking the money out of the cash register. In fact, the appellant’s statement shows that he was standing by Eason when he first pulled the knife out in the store when Perkison’s back was turned and when Eason began stabbing the decedent. Considering this evidence alone, a jury could have concluded appellant counseled and aided in Perkison’s death.

Finally, the appellant contends that the trial judge erred in allowing into evidence one photograph of the crime scene and four autopsy photographs of the decedent’s knife wounds. The trial judge excluded seventeen crime scene and autopsy photographs offered by the state. As gruesome as the death of this man was, the photograph of the crime scene which was introduced is very mild. While one can tell there is a lot of blood, the photograph is a small Polaroid shot which is not very colorful or very close so as to reveal details.

The admissibility of photographs is in the sound discretion of the trial judge and will not be set aside absent an abuse of that discretion. Henderson v. State, 291 Ark. 138, 722 S.W.2d 842 (1987). Even inflammatory photographs can be admitted if they shed some light on any issue or are useful to the jury. Fairchild, 284 Ark. 289, 681 S.W.2d 380.

In the present case, all of the photographs admitted were relevant. Each of the autopsy photos shows a different set of stab wounds, and as previously mentioned, only one photograph on the crime scene was admitted. We hold the trial court was correct in admitting these photographs.

In accordance with Ark. Sup. Ct. R. 11 (f), we have received the record for all objections decided adversely to the appellant and have found no reversible error. For the reasons stated above, we affirm.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the result reached by the majority because I find the improper conduct of the juror not to be prejudicial under the circumstances. My purpose in writing, however, is to clarify what I consider to be a misleading statement.

The majority opinion asserts: “[W]e note that appellant never raised this issue until his motion for a new trial, which was filed long after the trial.” That statement and the one following it, might lead one to believe that an objection to the misconduct of a juror must be lodged at or before the time for filing a motion for a new trial.

In the present case, there was no dispute that the appellant did not know of the alleged misconduct until after the filing of a motion for a new trial. There is absolutely nothing wrong with filing a motion to set aside on the basis of jury conduct after a motion for a new trial has been made, provided that this information was not known at the time of the motion.

       The officers testified that they had not advised appellant of this scheduled arraignment hearing when he was read and waived his rights before giving his statement on Monday, June 30, 1987.


author: Tom Glaze, Justice.

text:
    James Edward WILLIAMS v. STATE of Arkansas
    CR 89-96

      116 S.W.2d 359
    Supreme Court of Arkansas
    Opinion delivered September 25, 1989

      Bob Keeter, for appellant.

      Steve Clark, Att’y Gen., by: Kelly A. Procter, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of first degree murder and sentenced to life. In his appeal, he raises three points for reversal. We find no merit in his arguments, and therefore affirm.

We first consider appellant’s argument that the statement he gave law authorities on April 26, 1988, should have been suppressed because, at the time he gave it, he was illegally detained without probable cause. We disagree.

Probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that a crime has been committed by the person suspected. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989). Probable cause to arrest without a warrant does not require the quantum of proof necessary to sustain a conviction. Id. In viewing probable cause in Addison, we stated the following:

The determination of probable cause is based upon factual and practical considerations of everyday life upon which ordinary men, not legal technicians, act. A nontechnical approach correctly balances the competing interests of the individual and society, so that law enforcement officers will not be hampered, nor law abiding citizens left to the mercy of over-zealous officers. In making the determination of probable cause, we are liberal rather than strict.

Appellant had been working for Ann Wilkins in her dog kennels when Ms. Wilkins, a Mena resident, was found in the kennels beaten and in a comotose state at about 11:00 a.m. on April 18,1988.Shedied as a result of the beating. Tony Nedwick, Wilkins’s boarder, conveyed to the authorities that appellant worked mornings and would drive his vehicle, which had a loud muffler, to the kennels at 7:30 a.m. Appellant usually left work at around 10:30 a.m., and Nedwick would generally see Wilkins afterwards. On the morning of April 18th, at about 9:00, Nedwick heard, but did not see, a loud vehicle which he believed was appellant’s. Later, he also heard the vehicle leave. Nedwick went to inspect when he did not see Ms. Wilkins at the usual time that morning. That was when he found Wilkins. On the same morning at around 10:00, appellant had been seen in his car leaving Mena. In addition, during their investigations, law enforcement officers determined that Ms. Wilkins had experienced problems with the appellant coming to work late and that the appellant had been convicted for previous assaults on women.

On April 24, 1988, appellant returned to Mena, and learned the police wanted to talk to him. He voluntarily went to the sheriffs office the next day. At this time, no warrant had been issued for appellant’s arrest. On April 25, appellant was questioned by officers, and he agreed to take a polygraph test in Ft. Smith. However, upon arriving in Ft. Smith, he and his accompanying authorities learned the polygraph equipment was in disrepair. When they returned to Mena, appellant left the sheriffs office after being told to come back the next day for a return trip to Ft. Smith. Appellant returned on April 26th, went to Ft. Smith and in his own terms, “took the polygraph test voluntarily because I knew I didn’t have to.” On the April 26th trip, appellant rode with Officer Welch only. After taking the test and when returning to Mena, appellant, crying, told Welch that he would like to tell the whole story and get it off his conscience. Appellant asked that the prosecutor or his deputy, Mr. Black, be present. Black was available when Welch and appellant returned to Mena. Unquestionably, at this point, probable cause existed to detain the appellant. Appellant was then read his Miranda rights, and he proceeded to give his statement, which reflected the fact that he had struck Ms. Wilkins in the head with a hammer several times after he had reported to work on the morning of April 18th.

Appellant next argues that the trial court erred in denying his motion for the disqualification of the prosecuting attorney from participating in the hearing held to suppress appellant’s statement. Appellant contends that the prosecutor was a material witness and for that reason should have been disqualified.

On April 25th, the day appellant first volunteered to talk with the law officers, the prosecutor was at the courthouse on other business but stopped for a few minutes to see the appellant because he knew the appellant — he had prosecuted appellant on an earlier felony offense. Although the prosecutor did not participate in questioning the appellant, he told appellant that it would make appellant feel better if he told everything he knew about Ms. Wilkins’s situation. As appellant put it, “[the prosecutor] wanted me to tell everything that I knew to clear the air.” “The prosecutor,” appellant said, “asked me if I would be willing to take a polygraph test.”

The court has held that when a prosecutor undertakes an active role in the investigation of a crime to the extent that he becomes potentially a material witness for either the state or the defense, he can no longer serve as an advocate for the state in that case. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). However, we have also held that the rule against a prosecuting attorney acting both as an advocate and a witness was not designed to permit defense counsel to call the prosecuting attorney as a witness and thereby disqualify him as the state’s advocate. See Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978). Here, the prosecutor did not take an active part in investigating the crime or in interrogating the appellant. Appellant even conceded the prosecutor never ordered him to take a polygraph test and admitted he knew it was purely voluntary on his part to do so. The prosecutor’s testimony regarding any of these matters was simply unnecessary. Appellant also claims the prosecutor was a material witness in view of an alleged conversation which took place between appellant and the officer during their return trip from Ft. Smith on April 26. Appellant claims Welch said that he had talked with the prosecutor about making a “deal” with appellant. Welch denied making any such statement. Obviously, such a conflict in testimony concerns a credibility issue which is one for the trial court to resolve. See Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986).

Finally, appellant asserts certain photographs were erroneously admitted into evidence. He contends the photographs were irrelevant, inflammatory and prejudicial.

The trial court allowed eight of fifteen photographs that were offered by the state. Some of the pictures are gruesome and can be depicted as inflammatory, but even inflammatory photographs may be admitted if they tend to shed light on any issue or if they are useful in assisting the jury in understanding testimony. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Furthermore, photographs are admissible if they tend to corroborate the testimony of a witness, show the nature and extent of wounds or the savagery of an attack, or are useful to enable a witness to better describe objects portrayed. Davis v. State, 246 Ark. 838, 440 S.W.2d 344 (1969). The photos reflected the force of attack on Ms. Wilkins and the location of the wounds to her head. Importantly, the medical examiner used the photographs to identify the holes or wounds to the victim’s head in order to match those wounds to a hammer found at the crime scene. The officers believed the hammer was used to bludgeon Ms. Wilkins to death. Appellant further argues that the photos were unnecessary because he had informed the trial court that he would not contest the nature or cause of Wilkins’s death. Of course, it is well settled that a defendant, in a criminal trial, cannot prevent the introduction of relevant evidence by stipulating to the fact which such evidence tends to prove. David v. State, 286 Ark. 205, 691 S.W.2d 133 (1978).

In accordance with Ark. Sup. Ct. R. 11 (f), we have reviewed the record for all objections decided adversely to the appellant and have found no reversible error. For the foregoing reasons, we affirm.


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

text:
    SHELTER MUTUAL INSURANCE COMPANY v. Nancy TONEY, Guardian of Lucille Baker
    89-204
    776 S.W.2d 362
    Supreme Court of Arkansas
    Opinion delivered September 25, 1989

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for petitioner.

      Murrey L. Grider, for respondent.
   Per Curiam.

Lucille Baker and others were passengers in an automobile driven by Perry Baker. The driver of the car with which the Baker car collided was uninsured. Perry Baker was insured by Government Employees Insurance Company. His policy contained uninsured motorist coverage limited to $25,000 per person and $50,000 per accident. Lucille’s share of the recovery under Perry’s policy was $2,950. Lucille was covered personally by a policy issued by Shelter Mutual Insurance Company which also contained uninsured motorist coverage in the amount of $25,000 per person. She sought to collect from Shelter the difference between that which she had collected from GEICO and $25,000. The trial court awarded summary judgment to Shelter on the basis of its interpretation of the “other insurance” clause in the Shelter policy. The court of appeals reversed and remanded the case, interpreting the “other insurance” clause and holding that, pursuant to it, Lucille was entitled to recover from Shelter because the only coverage “available” to her under the GEICO policy was in the amount of $2,950.

We are asked to review this decision because it allegedly conflicts with our decision in Payne v. Farm Bureau Mut. Ins. Co. of Arkansas, Inc., 298 Ark. 540, 768 S.W. 2d 543 (1989). There is no conflict. In the Payne case the question was whether a motorist was “uninsured,” and our opinion considered the important question of who qualifies as an uninsured motorist under Ark. Code Ann. §§ 23-89-401 through 23-89-405 (1987). Here, the question involves interpretation of an insurance policy “other insurance” clause to determine whether other insurance was “available” to the insured.

Even if we found a conflict between the decisions, we would deny the petition. Arkansas Supreme Court and Court of Appeals Rule 29.6.; Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979).

Petition denied.

Purtle and Glaze, JJ., dissent.

John I. Purtle, Justice,

dissenting. This appeal should have been lodged in the Supreme Court in the first place because it involves the interpretation of the Arkansas Uninsured Motorist Coverage Act, Ark. Code Ann. § 23-89-401 — 405 (1987). The decision also involves the interpretation of the Underinsured Motorist Coverage Act codified at Ark. Code Ann. § 23-89-209 (Supp. 1987).

On May 1,1989, this court published its opinion in Payne v. Farm Bureau Mutual Insurance Co., 298 Ark. 540, 768 S.W.2d 543 (1989). The Arkansas Court of Appeals rendered an unpublished opinion in Nancy Toney, Guardian of Lucille Baker v. Shelter Mutual Insurance Co., on June 28, 1989. The two opinions are conflicting.

As a result of these holdings, appellants in future cases may proceed under either theory. The Court of Appeals would reach one result, while this court would reach another. Thus, smart lawyers will maneuver their cases into the appropriate appellate forum for the desired result.

Glaze, J., joins this dissent.


author: Per Curiam.

text:
    Lamar VESTAL v. STATE of Arkansas
    RC 89-45
    775 S.W.2d 911
    Opinion delivered September 25, 1989

      Haddock & Mazzanti, by: James W. Haddock, for appellant.
    No objection.
   Per Curiam.

On May 26, 1989, Lamar Vestal was convicted of possession of marijuana and sentenced to one year in jail. His attorney, James W. Haddock, stated that he negligently failed to file a timely notice of appeal, as instructed by the defendant. He now seeks a belated appeal.

The failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal constitutes and is good cause for the granting of a belated appeal. Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986). The motion for belated appeal is granted.

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


author: Jack Holt, Jr., Chief Justice.

text:
    Daniel REMETA v. STATE of Arkansas
    CR 87-214
    777 S.W.2d 833
    Supreme Court of Arkansas
    Opinion delivered October 2, 1989
    [Rehearing denied October 30, 1989.]

      Douglas, Hewett & Shock, by: J. Randolph Shock, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Daniel Remeta, was convicted of capital felony murder and sentenced to death on May 5, 1987. Upon initial appeal, the case was remanded to the trial court to determine whether Remeta was competent to waive his right to appeal. That issue subsequently became moot, and the capital murder conviction and death sentence are currently being appealed on six points of error.

On February 11, 1985, Linda Marvin, a convenience store clerk, was killed at her workplace in Fort Smith, Arkansas, by ten gun shot wounds that had been inflicted at close range. The cash register was empty. Remeta was arrested in Colby, Kansas, on February 13, 1985, following a shoot-out with local authorities. Remeta and a codefendant were charged with the murder of Ms. Marvin; Remeta was convicted of capital felony murder and sentenced to death.

I. SUFFICIENCY OF THE EVIDENCE TO SUSTAIN THE CONVICTION

Remeta contends that the trial court erred by denying his motion for a directed verdict based on the sufficiency of the evidence, which was made at the close of the State’s case. Although Remeta did move for a directed verdict at the close of the State’s case, he did not move for a directed verdict at the close of the evidence pursuant to A.R.Cr.P. Rule 36.21(b). This rule provides that:

When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.

A renewal of the motion would have been to no avail in this case, however, as the evidence was more than sufficient to support the verdict. Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989).

A motion for a directed verdict at trial challenges the sufficiency of the evidence. Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988). In determining the sufficiency of the evidence upon appeal, the court not only considers the testimony that tends to support the'verdict, but also views the testimony in the light most favorable to the appellee. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).

The trial court’s decision is affirmed if there is any substantial evidence to support the verdict. Williams v. State, supra. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other, forcing or inducing the mind to pass beyond a suspicion or conjecture. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987) (citing Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986)). In addition, the law makes no distinction between circumstantial evidence and direct evidence. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

In its case in chief, the State was required to prove that the defendant had committed the elements comprising the offense of capital murder. A person commits capital murder when:

(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit... robbery,, . . and in the course of and in furtherance of the felony,. . . he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; . . .
Ark. Code Ann. § 5-10-101 (a)(1) (Supp. 1987).

By using robbery as the underlying felony in this capital murder offense, the State also had to show that, “with the purpose of committing a [robbery]. . . , [one]. . . employs or threatens to immediately employ physical force upon another.” Ark. Code Ann. § 5-12-102(a) (Supp. 1987).

The State showed that Remeta had purchased the murder weapon and enlisted the aid of a “wino” to purchase the bullets. An eyewitness placed Remeta at the scene of the crime shortly before the crime occurred. Remeta’s own statement, given to police officials four days after the robbery and murder, acknowledged his presence at the crime scene during its commission, that he knew that a robbery would take place, and that he knew that his friend who entered the store and committed the robbery and murder had been armed with a gun. The statement also indicated that he knew that his friend had shot other people while committing previous robberies.

The State also proved that the victim had been shot ten times with a .22 caliber gun and that the bullet fragments found in the victim’s body, and at the crime scene, were fired from the same .22 caliber gun which was found near Remeta when he was arrested in Kansas. It was also shown that $535.00 was missing from the cash register of the convenience store by comparing the last cash register receipt before the murder with the owner’s records.

At the close of the State’s case, Remeta moved for a directed verdict; he asserted that not only was there no evidence to show that he caused the death of the victim, but that there was no evidence to show that he aided, assisted, or induced her death.

In Hallman & Martin v. State, 264 Ark. 900, 575 S.W.2d 688 (1979), we affirmed the defendant’s conviction of capital murder in the furtherance of a kidnapping. Martin’s participation in the murder was limited to providing the gun that was given to the person who committed the murder and being at the crime scene during the commission of the murder. Martin participated to this extent with the knowledge that violence to the victim would probably occur.

Similarly, Remeta furnished the gun and bullets used to kill the store clerk during the robbery of the convenience store. Remeta was also present at the crime scene during the commission of the robbery with the knowledge that the person committing the robbery had shot other people during previous robberies. Suffice it to say, Remeta participated to the extent that he knew violence to the victim would probably occur. Putting these facts together, we find that the evidence presented supports Remeta’s conviction for capital murder.

We decline to address Remeta’s cursory allegation that the trial court erred by failing to direct a verdict based upon the affirmative defense provided in Ark. Code Ann. § 5-10-101 (b), as he did not make a motion for a directed verdict at the close of the case pursuant to A.R.Cr.P. Rule 36.21(b). In addition, Remeta did not raise this issue in the proceedings below, and his failure to do so at the trial court level procedurally precludes him from raising this argument now. Reed v. Alcoholic Beverage Control Div., 295 Ark. 9, 746 S.W.2d 368 (1988).

II. SUPPRESSION OF APPELLANT’S STATEMENTS

Remeta contends that his initial statement given to police authorities on February 13,1985, was illegally obtained and that, as a result, all of his subsequent statements were inadmissible. He further supports his contention of the inadmissibility of his February 15, 1985, statement with allegations of continued confinement without the aid of requested counsel and police brutality in the form of physical abuse. He also challenges the voluntariness of his statements on the basis that the State failed to secure material witnesses at the suppression hearing and at the trial to testify as to the medication which he received while hospitalized for a gun shot wound to his hip. As a final challenge to the voluntariness of his statements, Remeta claims unkept promises made to him by a law enforcement official.

In reviewing the admissibility of Remeta’s statement, the court makes an independent determination based upon the totality of the circumstances and reverses the actions of the trial court only if it is found that the court’s finding was clearly against a preponderance of the evidence. Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988) (citing Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985)).

In determining whether Remeta’s statement was voluntary, the factors considered in the totality of the circumstances include the age, education, and intelligence of the accused, the advice or lack of advice of his constitutional rights, the length of detention, the repeated or prolonged nature of the questioning, and the use of physical or mental punishment. Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988) (citing Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986)).

In this case, although the February 13,1985, statement was not introduced by the State in Remeta’s trial, Remeta argues that the circumstances surrounding the statement taint all of his subsequent statements and thereby make them inadmissible. The pertinent facts in regard to this initial statement are that Remeta was arrested in Kansas on February 13, 1985, and hospitalized that day due to his hip wound. A guard was placed at the hospital. Police officials interviewed Remeta at the hospital after he had been treated by the hospital staff and after they had determined from the hospital staff that the only medication that he had received had been a tetanus shot.

Evidence was presented that during the interview, which lasted about an hour, Remeta was orally advised of his constitutional rights and he agreed to answer questions; he did not ask for an attorney at any time during this interview and no promises of leniency or threats were made to him. The police authorities found Remeta to be coherent, cooperative, and able to answer their questions and they discontinued the interview upon their own volition.

Remeta contends, to the contrary, that at the initial interview he was drunk and sleepy, that he requested an attorney, and that he was told that he could have a phone call only after he talked.

The issue of whether Remeta requested an attorney before he made his statement is a question of fact to be resolved by the trial court. Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987). Likewise, it is the trial court’s responsibility to determine if a statement is given freely and voluntarily without any compelling influence. Holden v. State, 290 Ark. 458, 721 S.W.2d 614 (1986) (citing Rhode Island v. Innis, 446 U.S. 291 (1980)).

We cannot say, under the facts before us, that the trial court’s finding that the initial statement was voluntary and admissible is outweighed by a preponderance of the evidence in favor of the appellant.

The circumstances surrounding Remeta’s February 15, 1985, statement differ from those surrounding his February 13, 1985, statement in that he was in a county jail, he signed a rights waiver form, and the interview was tape recorded. The interview lasted approximately 30 minutes. Evidence was again presented that Remeta was cooperative and did not request an attorney before answering the questions of the police authorities. Remeta’s allegations of threats and promises were refuted and Remeta did not present evidence in support of his allegations.

Again, we cannot say that the trial court’s finding that the resulting statement was voluntary and admissible is outweighed by a preponderance of the evidence in favor of the appellant.

Remeta cities Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985), for his contention that all statements made after the one illegally obtained are inadmissible. Assuming, arguendo, that the February 13,1985, statement was illegally obtained, the facts in Shelton can be easily distinguished from those in this case. Shelton, an eighteen-year-old male of marginal intelligence and maturity, who had never been placed under arrest or in jail, was awakened at 2:30 a.m. and summoned from the bunkhouse by three police officers using a P.A. system and questioned in a police car without first having been read his Miranda rights. It was held that this first statement, given in response to the officer’s direct inquiry, should not have been admitted.

Immediately after his first confession, Shelton was handcuffed and driven to police headquarters, where his formal statement was taken at about 4:00 a.m. Under these circumstances, where the original confession had been made under illegal influence, the influence will be presumed to continue and color all subsequent confessions unless the contrary is shown. As there was no substantial change in the environment, nor events to interrupt or alter the effects of the condition of the.first statement, the second statement was also suppressed. It was also held that a subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement would suffice to remove the conditions that precluded admission of the earlier statement.

In this case, 27-year-old Remeta, who had been in trouble with authorities since the age of thirteen, was interviewed in a hospital by police authorities from 9:44 p.m. to 10:45 p.m. Prior to the interview, he had been advised of his Miranda rights. Even if the first statement had been deemed to have been involuntary, the intervening two day time period, the change of environment from the hospital to the county jail, and Remeta’s signed rights waiver form would be sufficient to remove any taint from the February 15, 1985, statement which was admitted into evidence at trial.

Remeta also argues prejudicial error in that the State failed to secure the appearance of material witnesses to testify as to the medication he received prior to giving his statement in the hospital, relying on Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

Remeta’s reliance on Earl is misplaced. When an accused offers testimony that his confession was induced by violence, threats, or coercion, then it is incumbent on the State to call all material witnesses who were connected with the contested confession or explain their absence. Earl v. State, supra. The facts in this case can be distinguished, however.

It was held in Earl that the State did not meet its burden of proving the voluntariness of Earl’s confession because they failed to call a material witness, Sheriff Grady.

Earl alleged that detectives extracted his confession by verbal threats and by one menacingly hitting a big belt in his hand. He also testified that a codefendant told him, immediately prior to Sheriff Grady’s escorting Earl into an interview room, that he had been hit in the stomach with a belt. Sheriff Grady had accompanied the codefendant, after his confession, from the interview room back to his cell; he then took Earl out of the cell and delivered him to the interview room.

The court held that Sheriff Grady was a material witness since his testimony would have reflected on Earl’s state of mind at the time of entering the interview room by corroborating or negating Earl’s testimony concerning his codefendant.

In this case, the medical personnel could not be regarded as witnesses connected with the contested confession, since they were not working in concert with the officers, nor were they present during the taking of Remeta’s statement by police officials. In addition, there was no claim by Remeta that his statement was induced by violence, threats, or coercion to which these parties would be witnesses. Therefore, it was not the State’s responsibility to produce these witnesses who had no connection to the contested statement.

Remeta’s final allegation that he was made promises of leniency for his codefendant in exchange for his statements is also not convincing. His testimony conflicts with that of all of the officers who testified; their testimony stated that no promises had been made to him. With respect to the conflict in testimony as to whether a promise was made, the trial court obviously resolved it against Remeta, and we cannot say that the trial court’s ruling was clearly erroneous. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).

III. REFUSAL TO EXCUSE JURY PANELIST FRIDDLE FOR CAUSE

Remeta alleges that jury panelist Judy Friddle should have been excused for cause on the basis that she stated she would “probably go with the majority” and let them change her mind when she was the only juror who felt that the defendant in the case had not been proved guilty beyond a reasonable doubt or had an affirmative defense to the charge. The trial court refused to excuse Friddle for cause, and defense counsel used a peremptory challenge to excuse her.

In order to prevail on this point, Remeta must show that a juror actually seated should have been struck for cause. In order to make this showing, he must demonstrate that after exhausting all of his peremptory challenges, he was forced to accept a juror against his wishes. Watson v. State, 289 Ark. 138, 709 S.W.2d 817(1986). Therefore, we do not consider Remeta’s arguments in regard to this jury panelist, who was not accepted by him but excused by peremptory challenge. Gardener v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

IV. REFUSAL TO EXCUSE JUROR BARHAM FOR CAUSE

Remeta contends next that, after having exhausted all of his peremptory challenges, the trial court erred by refusing to excuse William Barham for cause on the basis that he was biased. To succeed on this point, Remeta must demonstrate that he was forced to accept this juror against his wishes.

Jurors are presumed unbiased, and the burden of proving actual bias is on the party challenging the juror. Fleming v. State, 284 Ark. 3907, 681 S.W.2d 390 (1984). We will also look closely at whether a particular juror who has been challenged was actually unbiased, notwithstanding the State’s success in rehabilitating the juror. Pickens v. State, 292 Ark. 362,730 S.W.2d 230, cert. denied, 484 U.S. 917 (1987). However, the trial court’s decision will not be reversed absent an abuse of discretion. Fleming, supra.

Remeta asserts the claim that Barham was biased as a seated member of the jury. Barham did state that his father-in-law and sister-in-law had been murdered, about five years previously, and that two persons had been convicted for their murders. One person had received life imprisonment, and the other person had received the death penalty. He stated unequivocally, however, that he could decide the case to be heard based upon the evidence presented and that he could follow the jury instructions as presented by the judge. Barham also stated that he would presume the accused innocent until proved otherwise and that he would not hold it against the accused if he chose not to testify.

Upon further voir dire, Barham said that he could be a fair juror and that, notwithstanding the circumstances of his in-laws’ deaths, he could decide the case fairly. Remeta did not ask the trial court to excuse Barham for cause prior to his selection as a member of the jury. In fact, upon the completion of Barham’s voir dire and his acceptance by the State as a potential juror, Remeta merely acknowledged that he had used all of his peremptory challenges.

We have held that a juror is acceptable as long as he can decide the case based upon the evidence presented at trial. See Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978), cert. denied, 449 U.S. 1057 (1980). Consequently, we hold that it was not an abuse of the trial court’s discretion to fail to excuse Barham for cause.

V. TRIAL COURT’S COMMENT ON THE EVIDENCE

Remeta also alleges that the trial court commented on the evidence during the State’s case in chief and thereby violated article 7, section 23 of the Arkansas Constitution. That section provides that “judges shall not charge juries with regard to matters of fact.”

The appellant did not raise this issue with the trial court and, therefore, it will not be considered for the first time on appeal. Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988).

VI. PROSECUTION’S COMMENT, DURING CLOSING ARGUMENT, ON THE APPELLANT’S RIGHT NOT TO TESTIFY

Remeta claims that the State commented on his right to not testify at the trial during its closing argument. Here again, he failed to make an objection with the trial court. As a result, this issue will not be considered for the first time on appeal. Bonds v. State, supra.

VII. CONCLUSION

In accordance with Ark. Sup. Ct. R. 11 (f), we have reviewed the record for all objections decided adversely to the appellant and have found no reversible error.

In conclusion, we find no merit to any of the six points of error which Remeta raised on appeal, and we therefore affirm the judgment of the trial court.

Affirmed.


author: Darrell Hickman, Justice.

text:
    James Lee THOMAS v. STATE of Arkansas
    CR 88-150
    776 S.W.2d 821
    Supreme Court of Arkansas
    Opinion delivered October 2, 1989

      John W. Patton IV and William F. Magee, for appellant.

      Steve Clark, Att’y Gen., by: /. Brent Standridge, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

James Lee Thomas was convicted of capital murder and sentenced to life in prison without parole. The only issue raised is whether the state failed to disclose favorable evidence to the defense. The undisclosed statement made by the victim was not exculpatory. In fact, it was incriminating.

Thomas and Huey Carnell White robbed Hamilton’s AG store in Stamps, Arkansas, and brutally beat Mrs. Delores Cockerham, a store clerk. She died a few days later. Thomas admitted he hit Mrs. Cockerham twice with the pistol he used in the robbery, once in the mouth and once on the head. Lori LeMay, another clerk, testified that she saw Thomas hit Mrs. Cockerham in the face and heard her hit seven or eight more times.

Dr. Fahmy Malak, the State Medical Examiner, testified that Mrs. Cockerham received eight blows to the head, all consistent with the use of a blunt instrument which could have been either the pistol carried by Thomas or White. Five of the blows were serious and potentially fatal.

Thomas’ defense was that he did not intend to kill anyone during the robbery. He said his gun did not have any bullets in it. The appellant confessed to hitting Mrs. Cockerham in the head with his pistol twice and testified at trial that he hit her and that he saw White hit her once.

After Thomas’ conviction, he filed a motion for a new trial based on the failure of the state to disclose a statement Mrs. Cockerham made to her husband at the hospital. She said “Carnell hit me,” then “they hit me.” The trial judge held the statement was not exculpatory, and we agree. The failure of the prosecution to disclose evidence favorable to the accused, which has been duly requested, is a denial of a defendant’s right to due process of law. Brady v. Maryland, 373 U.S. 83 (1963). The evidence is material only if it has a reasonable probability of producing a different result. Pennsylvania v. Ritchie, 480 U.S. 39 (1987).

Thomas admitted that he struck Mrs. Cockerham hard enough to knock her down, but he argues that it was White’s blows that killed her. A person may be convicted of capital murder even though an accomplice commits the actual murder. See Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979); Ark. Code Ann. § 5-10-101(a)(1) (Supp. 1987).

No question is raised on appeal regarding several gruesome photographs. We have reviewed them along with the testimony and conclude the trial court did not err in allowing the photographs introduced. See Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983); Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984).

We have considered all other possible errors and find none. Supreme Court Rule 11(f).

Affirmed.


author: John I. Purtle, Justice.

text:
    Ronald L. LOWE v. STATE of Arkansas
    CR 89-160
    776 S.W.2d 822
    Supreme Court of Arkansas
    Opinion delivered October 2, 1989

      Dan J. Kroha, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jolliff, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was charged with second offense DWI and was tried, convicted, and sentenced on June 9, 1988. He gave notice of appeal on the same date. The record was not lodged in the circuit court until September 7, 1988. On November 18, 1988, the circuit court dismissed the appeal on the ground that it was not timely.

The appellant argues that the trial court: (1) should not have sentenced the appellant until thirty days after the trial; (2) erred in dismissing the appeal as untimely; and (3) improperly denied him a jury trial. We find no authority requiring the municipal court to wait thirty days after trial before pronouncing sentence. The circuit court did not err by pronouncing sentence within thirty days following the trial, nor was the appellant improperly denied a trial by jury. Therefore, the decision of the circuit court is affirmed.

The appellant’s first argument is that the municipal court should have waited thirty days after finding him guilty before pronouncing sentence. Had the court done so, the appellant reasons, he would have had an additional thirty days in which to file notice of appeal, and the appeal would have been timely.

This argument is based on Ark. Code Ann. § 5-65-109(a) (1987), which states:

(a) Upon finding of guilt or a plea of guilty or nolo contendere for violating § 5-65-103, the courtshall immediately request and the Arkansas Highway Safety Program or its designee shall provide a presentence screening and assessment report of the defendant.
(b) The presentence report shall be provided within thirty (30) days of the request, and the court shall not pronounce sentence until receipt of the presentence report.

It cannot be argued that the sentencing in this case did not occur within thirty days because it was pronounced immediately after a finding of guilt. The municipal clerk testified, at the hearing in circuit court, that the case was tried on June 9,1988, and that a presentence report was submitted later on that same day, and judgment was entered at that time.

The appellant relies on Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984), for the proposition that the sentencing provisions of the Omnibus DWI Act of 1983 are mandatory. From that principle he somehow derives his argument that thirty days must have elapsed between the finding of guilt and pronouncement of sentence. We have found nothing in Lovell which indicates that pronouncement of sentence must be delayed thirty days after a finding of guilt in the municipal court. We do not, therefore, find the appellant’s argument persuasive.

The appellant contends in his second argument that the trial court erred in finding that the appeal was not timely filed in the circuit court. The appellant was tried and convicted on June 9, 1988. Judgment and notice of appeal were entered on the same date. At that time, the municipal court acknowledged that the appellant desired to appeal his decision. On July 1, 1988, the appellant posted a $45.25 appeal bond with the municipal clerk, who later discovered that a written notice of appeal had not been filed. She attempted to contact the appellant’s attorney on July 6 and again on July 13, but was unable to do so on either occasion. Although she had not heard from the appellant’s counsel, the municipal clerk filed the record in the circuit court on July 20, 1988. The next day, the circuit clerk informed the municipal court clerk that the appeal could not be accepted because it was not timely.

Rule 9 of the Arkansas Inferior Court Rules provides that:

(a) All appeals in civil cases from inferior courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment.
(b) An appeal from an inferior court to the circuit court shall be taken by filing a record of the proceedings had in the inferior court. It shall be the duty of the clerk to prepare and certify such record when requested by the appellant and the appellant shall have the responsibility of filing such record in the office of the circuit clerk.
(c) When the clerk of the inferior court, or the court in the absence of a clerk, neglects or refuses to prepare and certify a record for filing in the circuit court, the person desiring an appeal may perfect his appeal on or before the 30th day from the date of the entry of the judgment in the inferior court by filing an affidavit in the office of the circuit court clerk showing that he has requested the clerk of the inferior court [or the inferior court] to prepare and certify the records thereof for purposes of appeal and that the clerk [or the court] has neglected to prepare and certify such record for purposes of appeal. A copy of such affidavit shall be promptly served upon the clerk of the inferior court [or the court] and the adverse party.

The appellant cites McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989), for his contention that failure to file the notice of appeal in circuit court is not fatally defective. The following passage from McBride is apparently relied upon by the appellant:

A notice of appeal to circuit court was never filed by the appellant. However, we find that such a filing is not necessary to perfect the appeal from the municipal court to the circuit court. As long as the record of the inferior court proceeding was filed with the circuit clerk within 30 days of the entry of the judgment, the appeal is perfected.

The McBride opinion, as the language quoted above indicates, does not support the appellant’s argument because the record was not filed within thirty days of pronouncement of sentence.

We have long held that the record of the municipal court must be filed in the circuit court within thirty days of the municipal court’s judgment if the appeal is to be perfected. In Sheridan v. State, 239 Ark. 322, 389 S.W.2d 232 (1965), this court held:

When a party appeals it is the duty of the clerk of the municipal court to file the transcript in the office of the circuit clerk, but it is the duty of the party appealing to see that the transcript is so filed, and to give the circuit court jurisdiction the transcript must be filed with the circuit clerk within thirty days after the date of the municipal court judgment.

We stated in Finley v. State, 281 Ark. 38, 661 S.W.2d 358 (1983), that: “It is the duty of counsel, not the judge, not the clerk, not the reporter, to perfect an appeal.” The fact that the municipal clerk may not have performed her duties well does not inure to the benefit of the appellant’s counsel. Therefore, the circuit court did not err in dismissing the appeal.

The appellant also argues that it was error to deny him a jury trial in the circuit court. Since he was not entitled to a trial in the circuit court, we do not have the matter presented for decision at this time.

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice, concurring.

text:
    Pamela BOHANNAN v. Carol UNDERWOOD and Cecil B. Underwood
    89-107
    776 S.W.2d 827
    Supreme Court of Arkansas
    Opinion delivered October 2, 1989

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Brian Allen Brown, for appellant.

      Meadows, Davis & Goldie, by: James E. Goldie, for appellee.
   Robert H. Dudley, Justice.

Appellant, Pamela Bohannan, admitted liability in this automobile collision case. The only issue tried to the jury was damages. The jury returned a verdict in favor of appellee Carol Underwood for $51,140. We affirm.

The sole issue raised by this appeal is whether the trial court erred in refusing to grant a mistrial because appellee testified that she was no longer financially able to see her doctor. Appellant argues that evidence of one’s pecuniary condition is highly prejudicial and should never be heard by a jury unless it is directly relevant to some issue in the case. We do not address the issue because it is raised for the first time in this appeal.

Obj ections to evidence must specify the grounds for the objection unless the specific grounds are apparent from the context. A.R.E. Rule 103(a)(1). The reason for this rule is clear. A timely, specific objection at trial is essential in order to afford the trial court the opportunity to rule. Error may not be predicated upon a ruling admitting evidence unless there is such a timely, specific objection. A.R.E. Rule 103(a)(1); Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984).

The challenged testimony arose as follows;

A. Well, he said that he had done—
MR. SHARP: [Appellant’s attorney] Objection, Your Honor—
THE COURT; That would be hearsay.
THE WITNESS: How do I answer?
MR. GOLDIE: [Appellees’ attorney] You can’t say what Dr. Butler said, but in — in terms of the decision process, if there was something that Dr. Butler told you, you can say it was something Dr. Butler said, or if it’s another reason that you had, you can state your own reasons why, after those few months, you stopped going to Dr. Butler on a regular basis.
A. Uh, I couldn’t afford it.
MR. SHARP: Objection, Your Honor, that’s not proper—
THE COURT: What was—
MR. SHARP: —evidence.
THE COURT: What was the question?
MR. GOLDIE: The question was, after the few months of treatment she had with Dr. Butler, why did she stop going on a regular basis to Dr. Butler. And, her response was, that she could not afford it. I think that’s a legitimate question.
THE COURT: And, your objection is what?
(Whereupon, the following proceedings were had out of the hearing of the jury.)
MR. SHARP: (At the bench.) I don’t think that’s legitimate evidence, and I move for a mistrial.
THE COURT: (At the bench.) Well, I — I’ll overrule your motion.

Appellant never specified the ground now argued for her objection, and it is not readily apparent from the context. Consequently, she is precluded from asserting it for the first time on appeal.

Affirmed.

Purtle, J., concurs.

Glaze, J., not participating.

John I. Purtle, Justice, concurring.

I agree that the issue is being raised for the first time on appeal, and therefore, we should not consider the matter. However, that does not imply error. The answer given by the plaintiff was proper for the purpose of showing the reason plaintiff was no longer receiving medical treatment. It went to show the extent of her injuries. It was not a general statement of pecuniary condition, and accordingly, was a proper answer.

I concur.


author: Robert H. Dudley, Justice.

text:
    Wali MUHAMMED v. STATE of Arkansas
    CR 89-168
    776 S.W.2d 825
    Supreme Court of Arkansas
    Opinion delivered October 2, 1989

      John Wesley Hall, Jr. and Craig Lambert, for appellant.

      Steve Clark, Att’y Gen., by: 01 an W. Reeves, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Wali Muhammed, formerly a member of the bar, was charged with and convicted of second degree forgery and theft by deception. The case was certified to this Court by the Court of Appeals as one involving the interpretation of an act of the General Assembly. We affirm the convictions.

At the time of the criminal acts, appellant’s license to practice law in state courts had been suspended, but his federal license was still valid. Accordingly, appellant represented a Thomas Phillips in federal bankruptcy court, in a Chapter 13 proceeding, but did not represent him in a concurrently pending chancery court action.

In the chancery action Lomas & Nettleton interpleaded money which it knew belonged to either Phillips, Aetna Insurance Company, or a person named Bogard. The chancellor had not decided how the money should be disbursed. Appellant asked the chancery court clerk to give the money to him. The clerk refused. Appellant then prepared a precedent releasing the funds to his client, Phillips, and asked the clerk to present the precedent to the chancellor. The clerk refused. Appellant then presented the precedent to the chancellor who refused to sign it because she had not yet decided how the funds were to be disbursed.

A week later appellant prepared a precedent for the bankruptcy judge. This precedent provided that the funds in chancery court were interpleaded solely for Phillips and should be released to Phillips. The bankruptcy judge refused to sign the precedent and stated that he would sign it only if it provided that the money was to be paid to the Chapter 13 trustee. Appellant agreed. In the presence of appellant, the bankruptcy judge scratched out Phillips’ name on the original precedent and added language that the funds were to be released to the “Ch. 13 Trustee, pending further order of this court.” The interlineation was made only on the original precedent. Unfortunately, the bankruptcy judge also signed copies which were not interlined. The appellant took the copy of the order without the interlineation to the chancery clerk’s office and asked for the money. The clerk then issued a check for $842.66 payable to appellant’s client, Phillips. The check was deposited in the checking account of Arkansas Business Interchange, Inc. The signator for that account was appellant’s wife.

Appellant first argues that the State’s evidence on the forgery count was insufficient as a matter of law because the State did not present evidence that the signature of the bankruptcy judge was unauthorized. The short answer is that the State did not have to make such proof in this case. The code definition of forgery now includes the crimes previously known as forgery and as uttering. See Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978).

Ark. Code Ann. § 5-37-201 provides in pertinent part:

(a) A person forges a written instrument if with purpose to defraud he . . . utters any written instrument that purports tobe. . . the act of a person who did not authorize that act.
(c) A person commits forgery in the second degree if he forges a written instrument that is:
(2) A public record, or an instrument filed or required by law to be filed, or one legally entitled to be filed in a public office or with a public servant;
“ ‘Utter’ means to transfer, pass, or deliver ... to another person any written instrument, or to attempt to do so.” Ark. Code Ann. § 5-37-101(7). “The delivery . . . of a paper, document or other material containing written or printed matter or its equivalent that purports to be. . . the act of a person who did not authorize the act and that may evidence, create, transfer or otherwise affect a legal right, interest, or status constitutes uttering under that section.” Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978).

Here, appellant passed or delivered a written instrument which was entitled to be filed in a public office and which purported to be the act of the bankruptcy judge releasing money to Phillips, when in fact, the judge did not release the funds to Phillips, but instead released them to the trustee. Such an act fits within the above quoted statutory description of forgery.

The appellant next argues that the trial court erred in denying his motion for a directed verdict on the theft by deception count because the State failed to offer proof that appellant’s client, Phillips, did not authorize appellant’s control over the funds.

Ark. Code Ann. § 5-36-103(a)(2) provides:

(a) A person commits theft of property by deception if he:
(2) Knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof.

Here, the bankruptcy trustee was the person authorized to have custody and possession of the money. The money did not belong to appellant, so obviously it was “the property of another person.” The deception is readily apparent from the stated facts. The real issue is whether the trustee’s right of control and possession satisfied the “owner” requirement of the statute. The answer is yes. We have long held that the statutory requirement of ownership in theft statutes is satisfied by one’s having a right of possession and control. State v. Esmond, 135 Ark. 168, 204 S. W. 210 (1918), and cases cited therein. The word “owner” had this meaning when the current criminal code was enacted. When the General Assembly uses a word with a fixed meaning, the word is presumed to have been used in that sense. Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979).

Affirmed.


author: Steele Hays, Justice.

text:
    Ray NIEDERMEIER and Planters and Stockman Bank v. CENTRAL PRODUCTION CREDIT ASSOCIATION
    89-100
    777 S.W.2d 210
    Supreme Court of Arkansas
    Opinion delivered October 2, 1989

      Murrey L. Grider, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Steele Hays, Justice.

This case involves the interpretation of Ark. Code Ann. § 4-9-312 (1987). The issue is a priority dispute between the secured creditors of appellant Ray Niedermeier. The appellee, Central Production Credit Association (CPCA), contends it has priority to Niedermeier’s 1986 rice crop proceeds under Ark. Code Ann. § 4-9-312(5) (1987) and the appellant, Planters & Stockman Bank (PSB), contends it has priority under Ark. Code Ann. § 4-9-312(2) (1987).

Ray Niedermeier and his wife borrowed $51,800 from the White River Production Credit Association, the predecessor to appellee, CPCA, on March 21,1984. CPCA obtained an ongoing security interest in all of the Niedermeiers’ crops “which are now or will during the term of the security agreement become growing.” CPCA perfected its security interest on April 19,1984, by filing a financing statement.

On July 8,1985, Ray Niedermeier borrowed $10,000 from PSB. To secure this loan, PSB maintained a security interest in Niedermeier’s 1985 rice and milo crop. At the end of 1985, PSB extended the 1985 crop loan in exchange for a security interest in Niedermeier’s 1986 crops instead of requiring him to pay off his 1985 loan. PSB perfected its security interest in Niedermeier’s 1986 crops on September 4,1986, by filing a financing statement.

On appeal, the issue is whether PSB’s extension of Niedermeier’s 1985 crop loan constituted “new value” as defined by Ark. Code Ann. § 4-9-312(2) (1987) so as to give PSB priority over the security interest of CPCA to the 1986 rice crop proceeds. The trial court held that PSB did not give “new value” for its 1986 security interest, and therefore CPCA maintains priority over PSB under Ark. Code Ann. § 4-9-312(5) (1987). We agree.

Ark. Code Ann. § 4-9-312(5) (1987) embodies the general rule of priority between perfected security interests by providing that priority between conflicting security interests in the same collateral shall be determined according to the time of filing. In other words, the first in time, first in right rule prevails.

In all cases not governed by other rules in this section (including cases of purchase money security interests which do not qualify for the special priorities set forth in subsections (3) and (4) of this section), priority between conflicting security interests in the same collateral shall be determined according to the following rules: (a) Conflicting security interests rank according to priority in time of filing or perfection. Priority dates from the time a filing is first made covering the collateral or the time the security interest is first perfected, whichever is earlier, provided that there is no period thereafter when there is neither filing nor perfection.

CPCA contends that it has priority under Ark. Code Ann. § 4-9-312(5) (1987) in that its security interest was perfected on April 19,1984, and the appellant, PSB, perfected their interest in the 1986 crop on September 4,1986. However, PSB argues that Ark. Code Ann. § 4-9-312(2) (1987) provides an exception for the general priority rule and that the special provisions of that section allow PSB to obtain priority over CPCA in the proceeds of the 1986 crop. Ark. Code Ann. § 4-9-312(2) (1987) reads in pertinent part:

A perfected security interest in crops for new value given to enable the debtor to produce the crops during the production season and given not more than three (3) months before the crops become growing crops by planting or otherwise takes priority over an earlier perfected security interest to the extent that such earlier interest secures obligations due more than six (6) months before the crops become growing crops by planting or otherwise, even though the person giving new value had knowledge of the earlier security interest.

Ark. Code Ann. § 4-9-312(2) (1987) is an accommodation to the special needs of the farming community. It gives priority to the so-called “seed money lender” who lends money to a farmer to enable him to plant his crop. T. Quinn, Uniform Commercial Code Commentary and Law Digest, (1978). To qualify for the Ark. Code Ann. § 4-9-312(2) (1987) priority the seed money lender must (a) give “new value,” (b) within three months of planting, (c) to enable the farmer to produce the crop and (d) the obligations to the earlier secured party must have been due more than six months before the crops were planted.

Here, Niedermeier executed a promissory note to PSB for $10,000 on July 8,1985, and a security interest on that note was perfected on July 9,1985. At the time of the execution of the note, Niedermeier’s earlier debt to CPC A was more than six months overdue as the note was payable in full on January 5,1985. On the record presently before the court, we are unable to determine when Niedermeier planted the 1986 crops. Obviously the time element is crucial to the application of the statute, Ark. Code Ann. § 4-9-312 (1987), but we will assume that since the only issue presented by the appeal focuses on the “new value” requirement, the other statutory requirements were satisfied.

The term “new value” is used in several sections of the uniform commercial code, but left without statutory definition. The appellant defines the term “new value” by relying on the statutory definition for “value” found in Ark. Code Ann. § 4-1-201(44)(1987).Yet, official commentary number 2 to Ark. Code Ann. § § 4-9-107 and -108(1987) indicates that the terms “value” and “new value” are not synonymous.

We find very little case law interpreting Ark. Code Ann. § 4-9-312(2) (1987). However, other code provisions shed some light on the meaning of “new value.” Ark. Code Ann. § 4-9-108 (1987) gives examples of what is meant by “new value;” new value arises where a secured party (1) makes an advance, (2) incurs an obligation, or (3) releases a perfected security interest. Furthermore, official comment 2 to § 4-9-108 refers to “purchase money security interest,” defined in Ark. Code Ann. § 4-9-107 (1987) as indicating the nature of the new value concept. The purchase money party must be one who gives value by making advances or incurring an obligation, excluding from the purchase money category any security interest taken as security or satisfaction for a preexisting claim or antecedent debt. See, official comment 2 to Ark. Code Ann. § 4-9-107 (1987).

Here, PSB loaned Niedermeier money to produce his 1985 crop. However, no new money was advanced by PSB for production of the 1986 rice crop, nor did PSB incur an obligation, or release a perfected security interest. PSB contends that by extending the 1985 crop loan it indirectly advanced money towards the 1986 rice crop. Yet, PSB, by extending the 1985 loan and taking an interest in the 1986 rice crop, simply obtained security to secure the antecedent debt. The nature of the “new value” concept as defined in various code sections, coupled with the policy behind Ark. Code Ann. § 4-9-312(2) (1987) in giving priority to the seed money lender who lends money to the farmer to enable him to plant his crop, requires a finding that PSB failed to advance “new value” to Niedermeier.

AFFIRMED.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Minnie Christine HAILEY, as Administratrix of the Estate of Billy Houston Hailey, Deceased v. C. Leonard KEMP, M.D. and Roger Cagle, M.D.
    89-86
    776 S.W.2d 828
    Supreme Court of Arkansas
    Opinion delivered October 2, 1989

      Warren E. Dupwe, P.A., for appellant.

      Friday, Eldredge & Clark, by: C. Tab Turner, for appellee.
   David Newbern, Justice.

This is a medical malpractice case. Ark. Code Ann. § 16-114-204 (1987) provides:

(a) No action for medical injury shall be commenced until at least sixty (60) days after service upon the person or persons alleged to be liable, by certified or registered mail to the last known address of the person or persons allegedly liable, of a written notice of the alleged injuries and the damages claimed.
(b) If the notice is served within sixty (60) days of the expiration of the period for bringing suit described in § 16-114-203, the time for commencement of the action shall be extended seventy (70) days from the service of the notice.

The appellant, Mrs. Hailey, served the appellees, Dr. Kemp and Dr. Cagle, with the notice required under subsection (a) four days before the statute of limitations had run. The limitations period was thus extended 70 days from the service of the notice. The suit, alleging malpractice resulting in the death of Mrs. Hailey’s deceased husband on behalf of whose estate she sued, was filed, however, on the 56th day after the notice was served. Mrs. Hailey argues that the trial court should not have dismissed on the basis of subsection (a) of the statute because the statute conflicts with Ark. R. Civ. P. 3 and because the statute is unconstitutional.

While we have expressed a willingness to reconsider these arguments, see Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986), we will not do it in this case. Not only does the appellant’s abstract not show that the argument about Rule 3 was presented to the trial court, it does not even include the trial court’s judgment or order by which she contends the court dismissed her action.

Ordinarily, the judgment or decree appealed from is an essential constituent of the abstract. Davis v. Wingfield, 297 Ark. 57, 759 S.W.2d 219 (1988); Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987). Cf. City of Marianna v. Municipal League, 291 Ark. 74, 722 S.W.2d 578 (1987). This case presents no exception to that rule.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent because I am persuaded that the appellant substantially complied with the provisions of Ark. Code Ann. § 16-114-204(a) (1987), which require a 60 day notice before filing a medical malpractice suit. Although the appellant’s suit was filed three or four days before the end of this special notice, no prejudice resulted, and no party was injured.

The cause of action had already been extended beyond the ordinary period of limitations. The appellant filed the action 14 days before the time allowed him had expired. In the absence of even an allegation of prejudice, I would hold that the appellant substantially complied with the notice provisions and should be allowed to proceed to trial.


text:
    Larry Leroy BICE and Jackie Bice v. HARTFORD ACCIDENT & INDEMNITY COMPANY
    89-96
    777 S.W.2d 213
    Supreme Court of Arkansas
    Opinion delivered October 9, 1989

      Gerald Carlyle and H. David Blair, for appellants.

      Walker, Snellgrove, Laser & Langley, by: David N. Laser and Todd Williams, for appellee.
   Jack Holt, Jr., Chief Justice.

While working at a grain elevator facility, the appellant, Larry Bice, suffered a severe injury to his left leg which ultimately resulted in a below-the-knee amputation. At the time of Bice’s injury, the grain elevator facility was owned by R.D. Wilmans & Sons, Inc. (Wilmans) and leased to KSH, Inc., Bice’s employer.

The appellee, Hartford Accident & Indemnity Company (Hartford) provided comprehensive general liability insurance coverage for Wilmans’s various holdings, including the grain storage elevator facility where Bice was injured, from March 8, 1979, through May 29,1981. Bice was injured on March 2,1982, after the termination of Hartford’s coverage.

Prior to trial, all other defendants in this case were dismissed with the exception of Hartford. Bice alleges that in October 1980, in connection with Wilmans’s comprehensive general liability policy, Hartford negligently performed an inspection of the grain elevator facility pursuant to its loss control services program and that, as a result, Hartford is responsibile to him for damages.

The trial court directed a verdict in favor of Hartford at the close of Bice’s case on the basis that Hartford did not owe a duty to Bice. On appeal, Bice contends that the trial court erred in this regard and also erred by excluding from evidence Hartford’s publications defining its loss control services. We find that the trial court did not err on either point and affirm the judgment.

In determining the correctness of the trial court’s action concerning a motion for a directed verdict by either party, we view the evidence that is most favorable to the party against whom the verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. Consequently, a motion for directed verdict should be granted only if the evidence so viewed would be so insubstantial as to require a jury verdict for the party to be set aside. Mechanics Lumber Co. v. Smith, 296 Ark. 285, 752 S.W.2d 763 (1988).

Bice contends there is sufficient proof from which the jury could have found Hartford to have been negligent in discharge of its duty of inspection; however, the record is devoid of any evidence as to Hartford’s duties or obligations to Wilmans under its insurance coverage.

Bice did not introduce into evidence Wilmans’s comprehensive general liability insurance policy issued by Hartford. As a result, the contractual basis for Hartford’s responsibility to Bice is not a part of the record. We have held that we will not review evidence unless it is presented to a trial court and it is properly in the record. Evans v. State, 271 Ark. 775, 610 S.W.2d 577 (1981).

The only evidence pertaining to the scope of Hartford’s contractual obligation was provided by Wilmans’s insurance agent (a general agent), who gave a brief, general description of a comprehensive general liability policy. Both parties expand this information in their briefs to conform to their arguments; however, the record cannot be contradicted or supplemented by statements made in the briefs. Bridger v. State, 264 Ark. 789, 575 S.W.2d 155 (1979). As a result, the insurance agent’s meager statements as to expectations under a comprehensive general liability insurance policy is the only evidence before us to serve as a basis for determining Hartford’s liability. Suffice it to say, we cannot consider a breach of duty when there is no evidence before us that a duty exists, contractually or otherwise.

Bice also offered into evidence seven Hartford publications which referred to its loss control services; the publications dealt with loss control services available upon request to its policy holders. Bice offered the publications into evidence in order to show the extent of the obligation undertaken by Hartford in regard to a loss control inspection performed by Hartford on October 3, 1980. However, the trial court denied their admission because Bice could not establish their relevance due to the absence of a connection between the availability of loss control services from Hartford and either a request for, or reliance upon, this service by Wilmans.

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. A.R.E. Rule 401. In this case, Bice offered the publications into evidence for the purpose of showing the scope of the duty undertaken by Hartford when it performed a loss control inspection prior to Wilmans’s renewal of its comprehensive general liability policy. However, Bice had not established a connection between the availability of the service to Wilmans and the action undertaken by Hartford. More to the point, Bice’s proffer of this evidence presupposed that Hartford owed him a duty of care, a crucial issue which Bice had not demonstrated at that point in his case. As a result, the proffered publications were properly not admitted into evidence.

After having given the evidence most favorable to Bice its highest probative value, we find that the trial court properly granted Hartford’s motion for directed verdict.

Affirmed.