author: Vincent Foster, Jr., Special Justice. Tom Glaze, Justice, Robert L. Jones, Jr., Special Justice,

text:
    WALT BENNETT FORD, INC. v. Richard Randall KECK
    88-148
    768 S.W.2d 28
    Supreme Court of Arkansas
    Opinion delivered April 17, 1989

      Wallace, Dover & Dixon, by. Suzanne Antley and David A. Couch, for appellant.

      Steven R. Davis, for appellee. :
   Vincent Foster, Jr., Special Justice.

Appellant, Walt Bennett Ford, Inc., having completed warranty repairs on a Yugo automobile owned by appellee, Richard Keck, declined to surrender the Yugo to Keck due to his refusal to pay rental charges for a substitute automobile appellant provided him to use while his Yugo was being repaired. Keck sued for conversion of the Yugo, and the jury returned a verdict against appellant for both compensatory and punitive damages, from which appellant appeals. Appellant contends that the trial judge erred in allowing the introduction of certain evidence and in submitting the issue of punitive damages to the jury and argues alternatively the punitive award was excessive. We affirm.

In October 1986, Keck purchased the Yugo automobile from appellant, an automobile dealer. Mechanical and other defects immediately developed, and Keck took it back to the appellant for repair on at least two occasions. Both times the appellant provided Keck an automobile to use while the Yugo was being repaired. On the first occasion it is undisputed there was no charge for the substitute automobile. On the second occasion Keck testified he told a representative of the dealer that he would be out of state for six to eight weeks and he needed a “loaner” automobile to use while the Yugo was being repaired. He testified that he was told there would be no chargé for the “loaner” automobile. Appellant disputed this testimony. On both occasions Keck signed a lease agreement form but he testified the form was blank when he signed it and that he was told the form was necessary only to waive liability insurance on the substitute automobile. When Keck returned to pick up his Yugo seven weeks later, in late December, the dealer’s agents demanded $1,200 in rent for use of the substitute automobile. Upon Keck’s refusal to pay, the demand was reduced to $360 rental, calculated to cover the time which the dealer contended the Yugo had been repaired and available to be picked up. Keck testified he had not received prior notice the automobile was ready and he refused to pay the reduced demand. Because of Keck’s refusal to pay rental, the appellant declined to surrender the Yugo and its service manager told Keck that appellant would keep the automobile until Keck paid the rental claimed. Keck left the dealership on foot.

It is undisputed that all repairs to the Yugo were warranty repairs, that Keck owed the dealer nothing for the repairs, and that the lease agreement form for the substitute automobile did not grant the dealer a possessory lien on the automobile being repaired.

In response to Keck’s claim for conversion of his Yugo, appellant filed a general denial and counterclaimed for rental on the substitute automobile. The jury held for Keck on the counterclaim and awarded him $6,337.33 in compensatory damages and $25,000 in punitive damages on the conversion claim.

Appellant contends evidence introduced regarding the defects of the Yugo and attempts at repairs was irrelevant to the elements of conversion and inflamed the jury. Rule 401 of the Arkansas Rules of Evidence defines “relevant evidence” as “evidence having 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.” Appellant’s counterclaim for rental directly placed in issue whether or not Keck had agreed to pay rental on the substitute automobile. Keck testified that when he delivered the Yugo for repair on the second occasion he was initially told that the dealer could not give him a “loaner” vehicle but that a rental unit was available. Keck testified that because of all the problems he had had with the Yugo he was adamant with the dealer that he was not going to pay for a rental car and that the dealer’s representative agreed. The testimony concerning the mechanical problems and repair attempts tended to make Keck’s version of the discussions regarding the substitute automobile, including the dealers’ acquiescence in Keck’s unwillingness to agree to pay rental, more probable than if the jury had considered the issue without knowing the history of prior problems experienced by Keck.

Appellant contends the evidence should have been excluded under Rule 403 of the Arkansas Rules of Evidence even if it were relevant. Rule 403 permits the trial court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice or other specified considerations. The balancing of the probative value against prejudice from evidence is within the discretion of the trial judge, and his decision on such a matter will not be reversed absent an abuse of that discretion. Simpson v. Hart, 294 Ark. 41, 740 S.W.2d 618 (1987); Wood v. State, 20 Ark. App. 61, 724 S.W.2d 183 (1987). The admission of the challenged evidence did not constitute an abuse of discretion, and some of the testimony complained of was invited during cross-examination by appellant’s counsel.

Appellant next contends that the trial court erred in submitting the issue of punitive damages to the jury and that the jury’s award of punitive damages was unsupported by the evidence. Appellant does not argue the sufficiency of the evidence to establish liability for willful conversion.

In Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979), the appellant lender had financed the sale of two pickup trucks and had peacefully repossessed the trucks upon the buyer’s default on monthly payments. But despite demand the lender had not promptly returned personal property which was stored in the trucks at the time of the repossession. Upon the debtor’s suit for conversion of the personalty, the jury awarded $2,000 in actual damages and $17,000 in punitive damages. The appellant asserted that the trial court erred in instructing the jury regarding punitive damages since there was no evidence of force, oppression, or intimidation in connection with the repossession. This Court held:

Exemplary damages are proper where there is an intentional violation of another’s right to his property. Kelly v. McDonald, 39 Ark. 387 (1882); Ft. Smith I. & S. Mills v. So. R. B. P. Co., 139 Ark. 101, 213 S.W. 21 (1919); and Parks v. Thomas, supra. In view of the evidence previously recited, we hold that, although the taking was proper, the retention of the personalty after demand for its return constituted a submissible fact question on the issue of punitive damages.

Herring at 206-07, 589 S.W.2d at 588. This Court also affirmed the sufficiency of evidence to uphold a punitive damages award for conversion of appellee’s automobile in Williams v. O’Neal Ford, Inc., 282 Ark. 362, 668 S.W.2d 545 (1984).

In Shepherd v. Looper, 293 Ark. 29, 732 S.W.2d 150 (1987), the appellant admitted having possession of appellee’s commercial fishing nets but claimed he was keeping them to ensure the recovery of nets of his own, pursuant to an alleged agreement with appellee. The jury rejected the explanation, and this Court held the evidence was sufficient to support the award of punitive damages.

The trial court instructed the jury on Keck’s claim for punitive damages that he “has the burden of proving that Walt Bennett Ford intentionally pursued a course of conduct for the purpose of causing damage.” This instruction presented one of the two alternative descriptions of conduct in AMI Civil 2d 2217 (Revised) which can justify an award of punitive damages. Appellant’s objection was not to the form of the instruction but rather to the sufficiency of evidence to support the submission of the issue of punitive damages to the jury.

Appellant’s conduct of retaining the Yugo even through the trial, thirteen months after the demand for surrender, without any claim of mistake or privilege or other legal right to do so, presents a submissible issue on punitive damages. The jury reasonably could have concluded that appellant withheld Keck’s property, his means of transportation, with the intent of causing him such inconvenience and damage that he would be coerced into the payment of a questionable debt. Appellant continued this course of conduct even after it was sued for conversion, obtained legal counsel and filed a counterclaim for the disputed rental. The evidence is sufficient to support a finding of intent to cause damage.

Appellant contends in the alternative that the punitive award was excessive, given under the influence of passion and prejudice. The issue of whether the punitive award was motivated by passion or prejudice was submitted to the trial court by appellant in a motion for new trial under Rule 59 of the Arkansas Rules of Civil Procedure. The trial court denied the motion. Considerable discretion is given to the jury in fixing punitive damages in an amount it deems appropriate to the circumstances. First National Bank of Brinkley v. Frey, 282 Ark. 339, 343, 668 S.W.2d 533, 536 (1984). While the award of punitive damages is substantial, it is not so great as to indicate the jury was influenced by passion or prejudice. The amount of the punitive award is supported by substantial evidence, including the relationship between the parties and the extent and duration of the appellant’s exercise of dominion over the personalty, and we do not find it excessive under the facts presented, reviewing the evidence in the light most favorable to the verdict. Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985); Schuster’s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987).

Affirmed.

Special Justice Sam Ed Gibson joins in this opinion.

Glaze, J., concurs.

Special Justice Robert L. Jones, Jr., dissents.

Purtle, Hays, and Newbern, JJ., not participating.

Tom Glaze, Justice,

concurring. The dissent by Special Justice Robert L. Jones is well-reasoned and appears to agree with the majority’s assessment as to the law on when punitive damages can be imposed for conversion. Justice Jones seems to part with the court based on the idea that the appellee, Richard Keck, had failed to meet his burden of proof to show the appellant intentionally pursued a course of conduct for the purpose of causing Keck damage. In support of his position, Justice Jones relates his review of the evidence as follows:

The conduct in question was the retention of possession of appellee’s automobile by the appellant. The undisputed evidence is that the appellant retained possession of the appellee’s automobile for the purpose of collecting rental which it claimed to be due from appellee for a substitute automobile. There was no evidence presented that the appellant knew that it had no right to retain possession of appellee’s automobile for that purpose. There was no evidence of any motive for the appellant to want to cause damage to the appellee. Its only motive was to collect the rental charge it believed to be due, and it may have believed it had a legal right to retain possession of appellee’s automobile until it was paid.

If the evidence mentioned by Justice Jones had been undisputed, I would join in his dissent. However, as I read the record, Keck testified that he told an employee of the appellant that he “wanted it understood that he was not paying for the [‘loaner’] car” and that the employee said, “You won’t have to because it is covered under your Yugo warranty.” Keck said that he never agreed to lease a car from appellant but did sign a blank lease form for the sole purpose of declining insurance on the “loaner” car since he already had insurance that would cover it.

It appears clear to me that a major conflict existed in the testimonies given by the opposing parties. Of course, if the jury believed Keck’s story, it could have concluded that he had never agreed to rent a car from the appellant. Further, the jury could have reasonably inferred or found that after Keck signed a blank lease form to waive liability insurance on the “loaner,” an employee for the appellant improperly completed the lease agreement thereby obligating Keck for rental payments he never agreed to pay.

In my view, Keck’s testimony, by itself, presents a submissible fact question on the issue of punitive damages. It is not this court’s duty, on review, to weigh issues of credibility or disregard admissible evidence. Instead, this court’s obligation is to determine whether the jury verdict is supported by substantial evidence. In light of the evidence noted above, I agree with the majority in affirming the jury’s verdict for punitive damages in this cause.

Robert L. Jones, Jr., Special Justice,

dissenting. This is an action for conversion of personal property. The appellee left his automobile with appellant for repairs while he was out of the state for approximately six weeks. A rental agreement was introduced in evidence which appellee testified that he signed in blank with the understanding that the form was necessary only for the purpose of waiving liability insurance on the substitute automobile. When the appellee returned the substitute automobile to get possession of his automobile, he was told that he could not have his automobile until he paid the rental due on the substitute automobile. He denied that any rental was due. Appellee filed suit for conversion and appellant counterclaimed for the rental alleged to be due. The jury resolved the issue in favor of the appellee and awarded him $6,337.33 compensatory damages and $25,000.00 punitive damages. I would affirm as to the compensatory damages and reverse as to the punitive damages.

Ark. Code Ann. § 18-45-201 (1987) provides for a possessory lien by automobile repairmen for parts and labor for the repair of an automobile. The repairs effected on appellee’s automobile were covered under a manufacturer’s warranty; therefore, there was no amount due for the repairs which would give rise to a possessory lien. There is no possessory lien provided under Arkansas law for unpaid rental on a substitute automobile; therefore, appellant had no right to retain possession of appellee’s automobile and became liable for conversion. The award of the fair market value of the property at the time of the conversion is the proper measure of compensatory damages.

The instruction given by the trial court on punitive damages was as follows:

“In addition to compensatory damages for any actual loss that Richard Randall Keck may have sustained, he asks for punitive damages from Walt Bennett Ford, Inc. Punitive damages may be imposed to punish a wrongdoer and to deter others from similar conduct. In order to recover punitive damages from Walt Bennett Ford, Richard Randall Keck has the burden of proving that Walt Bennett Ford intentionally pursued a course of conduct for the purpose of causing damage. You are not required to assess punitive damages against Walt Bennett Ford, Inc. but you may do so if justified by the evidence.” (Emphasis added.)

AMI 2217 provides two alternative standards of conduct which may justify an award of punitive damages. The first standard is that the defendent knew or ought to have known in the light of the surrounding circumstances that his conduct would naturally and probably result in damage and that he continued such conduct with malice or in reckless disregard of the consequences from which malice may be inferred. The second standard is that the defendant intentionally pursued a course of conduct for the purpose of causing damage. The conduct in question was the retention of possession of appellee’s automobile by the appellant. The undisputed evidence is that the appellant retained possession of the appellee’s automobile for the purpose of collecting rental which it claimed to be due from appellee for a substitute automobile. There was no evidence presented that the appellant knew that it had no right to retain possession of appellee’s automobile for that purpose. There was no evidence of any motive for the appellant to want to cause damage to the appellee. Its only motive was to collect the rental charge it believed to be due, and it may have believed it had a legal right to retain possession of appellee’s automobile until it was paid.

The effect of the holding of the majority is that a person who withholds possession of another’s property without legal right to do so, even though he may honestly and in good faith believe that he has a legal right to do so, may nevertheless be punished by an award against him for punitive damages. This is contrary to the holding of this Court in the case of Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181, 485 S.W.2d 192 (1972). In order for punitive damages to be proper, the person against whom they are awarded must be guilty of malice or act in such a willful, wanton or reckless disregard of consequences from which malice may be inferred. (Satterfield, supra, at page 185) In this case, the jury was instructed that Keck had the burden of proving that Walt Bennett Ford withheld possession of Keck’s automobile “for the purpose of causing damage” (with malice). In my opinion, the evidence was insufficient to justify the submission of that issue to the jury. The burden of proof is on the plaintiff to prove malice, not on the defendant to prove lack of malice.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Donnie Elbert GIST v. STATE of Arkansas
    RC 89-12
    768 S.W.2d 34
    Supreme Court of Arkansas
    Opinion delivered April 17, 1989

      Sherman and James, by: Anthony J. Sherman, for petitioner.
    No response.
   Per Curiam.

Petitioner, Donnie Gist, by his attorney, Anthony J. Sherman, has filed a motion for rule on the clerk. His attorney admits that he failed to file a transcript within the ninety (90) day limit due to his erroneous belief that he had been relieved as attorney of record.

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

A copy of this opinion will be forwarded to the Comittee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


text:
    Sterlin P. JONES v. Brian GOODSON
    89-58
    768 S.W.2d 33
    Supreme Court of Arkansas
    Opinion delivered April 17, 1989

      Raymond Harrill, for appellant.

      Ivester, Henry, Skinner & Camp, by: Robert Keller Jackson, for appellee.
   Per Curiam.

This is a question of procedure on appeal. Goodson obtained a $27,500 judgment against Jones, a patient at the Veterans Administration Hospital. No appeal was taken from the judgment. Goodson attempted to collect on the judgment by filing garnishments against several banks which held funds allegedly belonging to Jones and by attempting to levy on Jones’ wheelchair.

Sterlin Jones appealed from a circuit court order dated February 17, 1989, which directed two garnishees to turn over certain funds to appellee, Brian Goodson. On March 6, we granted an emergency stay of the order and requested briefs from the parties. The appellant filed a brief with his record on February 27 and wants to stand on it, which we will allow.

On March 9, Brian Goodson filed a cross-appeal in the case. He appealed from a December 22,1988, order of the circuit court dismissing one of the garnishees, Pulaski Bank & Trust. He also appealed from a portion of the February 17 order quashing the writ of execution issued on Sterlin Jones’ wheelchair. The appellant’s motion to dismiss the cross-appeal on the ground of untimeliness is denied. The December 22 order was an intermediate order which can be properly reviewed upon appeal of the final order in the case. Ark. R. App. P. 2(b). The notice of cross-appeal was properly filed with the circuit court which rendered the judgment. Ark. R. App. P. 3(d).

In his notice of cross-appeal, Goodson designated seven additional items to be included in the record on appeal. Jones claims that Goodson, as cross-appellant, should bear the responsibility of ordering these supplemental materials from the court reporter. Goodson cites Ark. R. App. P. 6(b), which provides that if the appellant has designated less than the entire record, the appellee may file and serve on the appellant a designation of the additional parts to be included. The appellant shall then direct the reporter to include those parts in the transcript.

The majority of the items designated in the notice of cross-appeal appear to concern the issues on cross-appeal more than the issues on direct appeal. But, not having addressed the merits of the case at this point, we cannot say which items are necessary to the determination of which issues. Therefore, we place the responsibility of ordering the additional parts of the record on the appellant, Sterlin Jones. Since a record has already been filed in the case, these items should be contained in a supplemental record.

If the appellant feels that the appellee has designated portions of the record which are not necessary to the determination of the issues on direct appeal, he may ask for an adjustment of costs after the case has been decided.


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

text:
    Daniel Eugene REMETA v. STATE of Arkansas
    CR 87-214

      771 S.W.2d 249
    Supreme Court of Arkansas
    Opinion delivered April 17, 1989

      Douglas, Hewett & Shock, by: J. Randolph Shock, for appellant.
    No objection.
   Per Curiam.

Appellant’s motion to file an enlarged brief is denied.

John I. Purtle, Justice,

dissenting. This case involves the death sentence. The appellant tendered his brief, the argument portion of which exceeds by 17 pages the page limit allowed by Supreme Court Rule 8(c). He requested this court to waive the rule and allow him to exceed the limit.

On this same date, in Logan v. State, CR 87-45, an appeal involving seven convictions for rape, the state filed a brief exceeding the argument limit by 23 pages. The state requests that we waive the rule.

This court denied the appellant’s motion for an additional 17 pages and granted the state’s request in the other case for 23 additional pages. Apparently we are using different scales of justice for appellants and the state.

I would grant both or deny both.


author: Darrell Hickman, Justice.

text:
    James A. DUTY and Opal Duty v. Barry WATKINS
    88-291
    768 S.W.2d 526
    Supreme Court of Arkansas
    Opinion delivered April 24, 1989
    [Rehearing denied May 30, 1989.]

      James A. Duty and Opal Duty, for appellants.

      Bassett Law Firm, by: Curtis L. Nebben, for appellee.

       Purtle, J., would grant rehearing.

   Darrell Hickman, Justice.

The appellants’ lawsuit was dismissed because they refused to comply with an order compelling discovery. We affirm the court’s action dismissing the appellant Opal Duty with prejudice, but we reverse and remand to allow James Duty to take a nonsuit.

James Duty and his mother, Opal, filed suit against Barry Watkins, an attorney. Watkins filed a motion to dismiss the complaint for failure to answer discovery requests. Since Judge Kim Smith had disqualified himself in the case, the motion to dismiss was heard by Judge Mahlon Gibson.

James Duty appeared pro se at the hearing and asked to take a nonsuit under ARCP Rule 41(a). The appellee claimed his motion to dismiss for failure to respond to discovery should be ruled on first. The trial judge agreed and granted the appellee’s motion to dismiss with prejudice.

James Duty’s request for a nonsuit should have been granted. The rule is clear that the privilege to take a nonsuit before final submission of a case is absolute. Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962) (interpreting Ark. Stat. Ann. § 27-1405 [Repl. 1962], virtually identical to Rule 41 [a]). This case had not been finally submitted because, although the case had come to a hearing, the argument was not yet closed. See Mutual Benefit Health & Accident Assoc. v. Tilley, 174 Ark. 932, 298 S.W. 215 (1927).

Opal Duty did not appear at the hearing and made no motion for a nonsuit. James, as a layman, could not represent her, so the dismissal with prejudice stands as to her.

Since we are reversing to allow a nonsuit, we need not address the question of whether Judge Gibson should have disqualified on his own motion.

Affirmed in part, reversed and remanded in part.


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

text:
    James Allen BECKER v. STATE of Arkansas
    CR 89-19
    768 S.W.2d 527
    Supreme Court of Arkansas
    Opinion delivered April 24, 1989

      Norman Douglas Norwood, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Robert H. Dudley, Justice.

The appellant, an habitual offender, was convicted of robbery pursuant to Ark. Code Ann. § 5-12-102 (Supp. 1987). That section provides:

A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

According to Ark. Code Ann. § 5-12-101 (1987), physical force is defined as “any bodily impact, restraint, or confinement or the threat thereof.” The appellant argues that the trial court erred in refusing to direct a verdict in his favor because there was no proof that he used force to resist apprehension immediately after a misdemeanor theft. The argument is without merit.

The robbery statute has been followed in a number of cases similar to the one now before us. See Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985); Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979); Wilson v. State, 262 Ark. 339, 556 S.W.2d 657 (1977); Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984); and White v. State, 271 Ark. 692, 610 S.W.2d 266 (Ark. App. 1981). In all of these cases the appellant was caught shoplifting and then used force to prevent apprehension.

In this case the evidence, viewed most favorably to the appellee, the State, as we must do, is as follows: A supermarket employee saw the appellant hiding some ham in his coat. The employee notified an off-duty police officer who helped with security in the store, and the officer watched the appellant leave without paying for the ham. The officer asked the appellant to follow him to the store office. After entering the office, the officer asked the appellant for some identification. The appellant said he had none and gave a false name. The policeman asked the appellant for the ham, and he gave it to him. The appellant was told he was under arrest for shoplifting. Appellant then took off his coat and gave it to the officer, as requested. The officer asked appellant to turn around and place his hands behind his head. The appellant refused. Appellant grabbed his coat and started for the office door. The officer grabbed the coat and forced appellant into a chair. The appellant jumped up, struck the officer in the chest, and once again started for the door. The two then struggled for some time before appellant was finally subdued. The officer testified that the time between the initial approach of the appellant and the time he was finally handcuffed was five minutes or less.

In Wilson v. State, 262 Ark. 339, 556 S.W.2d 657 (1977), a similar case, we defined “immediate” as “a reasonable time in view of particular facts and circumstances of the case under consideration.” Here, the evidence was sufficient to establish a theft and the employment of force immediately after the theft to resist apprehension or arrest.

The appellant next argues that the robbery statute at issue should be declared unconstitutionally vague. The argument has no merit. In Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984), we said that a law will be held to be vague when it leaves the police or the fact finder free to decide, without a fixed standard, what is prohibited.

The appellant contends that the statute is vague in that it refers to physical force upon another, while our cases refer to physical force upon the victim. Our cases do not change the wording of the statute, which clearly states that a defendant is responsible for the use of force on anyone either before, during or after the theft. The statute is not vague.

In his final argument the appellant contends that the trial court should have granted a directed verdict because he was not identified in court as the robber. This argument is also without merit. In Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988), the same argument for a directed verdict was made, and we stated that “an element to be proved in every case is that the person who stands before the court in the position of the defendant is the one whom the indictment or information accuses and to whom the evidence is supposed to relate.” Still, we declined to dismiss the case on that basis.

The reason is that identification can be inferred from all the facts and circumstances that are in evidence. United States v. Weed, 689 F.2d 752 (7th Cir. 1982); Delegal v. United States, 329 F.2d 494 (5th Cir.), cert. denied, 379 U.S. 821 (1964); State v. Watts, 72 N.C. App. 661, 325 S.E.2d 505 (1985); Dillon v. State, 508 P.2d 652 (Okla. Crim. App. 1973); State v. Hill, 83 Wash. 2d 558, 520 P.2d 618 (1974).

Here, there were no co-defendants; the defendant was tried alone. He was specifically identified as “Mr. Becker” and “the defendant” throughout the trial. The witnesses were eyewitnesses to the robbery,.and the fact that none of them pointed out that the wrong man had been brought to trial was eloquent and sufficient proof of identity.

Affirmed.

Hickman and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. Either something is wrong with our criminal justice system or something is wrong with this case. No fair system of justice could sanction giving a man fifteen years in prison for stealing a few slices of ham. The prophecy made in the dissent in Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979), has now been fulfilled. Although the ham slices in this case, which were in the appellant’s jacket pocket, may have been worth more than the fifteen cents referred to in the Jarrett dissent, the principle is still the same. There it was stated: “In practical application the majority view here would allow a robbery conviction for a person who took a 15-cent item and ran and, while running, accidentally bumped into someone in a crowd of people.”

The food store manager noticed the appellant putting the ham slices in his pocket and followed him to the cash register; observing that the appellant did not pay for the ham slices, the manager asked him to come of the office. An off-duty policeman, serving as a security guard for the store, assisted, and the appellant accompanied them to the store office. When asked for the ham, the appellant took it out of his coat pocket and laid it on the desk. The officer then took his coat. The coat, I am sure, was worth considerably more than the eighty-nine cent package of ham. After “ten or fifteen minutes,” the appellant decided to leave. In getting up out of the chair, where he had been placed by the off-duty policeman, he shoved the officer. The manager of the store described the encounter between the officer and the appellant in the following words:

The gentlemen doesn’t have much of a shirt left on him because Jim is trying to hang on and he is trying to run. Becker was trying to get away from Officer Kibat. I don’t think it was his intention to try to beat Officer Kibat. It really wasn’t a fight, it was more or less Jim hanging on. I guess the part of the fight would be just trying to keep him there, would be part of the fight. The only thing that I seen the gentlemen, the contact that he put on Jim Kibat was when he was sitting in the chair and he came up like this and knocked him against the wall. I did not see any punches swung at any time from anybody. He did shove the police officer. . . . I did not see him strike the police officer with his fist. I did not find a weapon on Mr. Becker, I did not see a gun, or a knife or a baseball bat. When Mr. Becker came into the office and I confronted him he put the ham on the table. When he decided to leave he left both pieces of ham and a flint.

The statute which allows a misdemeanor to be elevated to the felony of robbery requires that a person committing a theft, in his effort to avoid apprehension, “employs or threatens to immediately employ physical force upon another.” By no stretch of the imagination can it be said that the appellant, in attempting to avoid apprehension, was using the type of force envisioned by this statute. He had been in the office from ten to fifteen minutes before he decided to leave. All the force used in this case was directed at the appellant. At most, he bumped into the off-duty officer as he attempted to get up out of his chair to leave the office. He did not have a gun, knife, or other object or weapon and did not strike the officer or anyone else with his fist.

If the statute has no plain meaning to the majority, then it behooves them to overcome the argument of vagueness. The opinion does not do so. Any reasonable interpretation of the statute would seem to require the appellant either to use physical force directed at another person or to use threats to employ a gun or knife or some other weapon. He attempted to steal a small amount of ham. No doubt he was hungry. He probably would not have been given more than thirty days had he been charged with shoplifting, the actual offense, instead of the bootstrapped felony which resulted in a fifteen-year prison sentence.

Over one hundred twenty-five years ago, Victor Hugo, in Les Misc.ables, attacked the injustice of a system that sentenced a man to imprisonment for stealing a loaf of bread. Surely we have made a little progress since that time. Many persons who have taken a human life have received less punishment than the fifteen years meted out to the appellant who tried to pilfer a small package of ham. Justice and mercy cry out against the imposition of such disproportionate punishment. The store manager, who was present from start to finish of the episode, did not even know a robbery had occurred. The reason he did not know it was because only a misdemeanor had occurred.

It is cases like this which lead to the overcrowding of our prison system and the devouring of a substantial amount of our tax money. I believe in fair and just punishment delivered without undue delay. However, this case does nothing to promote a fair and just criminal justice system. It is, in fact, a blight upon our system. If this court will not correct it, then the Governor and the General Assembly should.


author: Robert H. Dudley, Justice.

text:
    The CITY OF HOT SPRINGS, Arkansas, By and Through Its Duly Elected Mayor, Honorable Jon L. Starr v. The VAPORS THEATRE RESTAURANT, INC.
    88-308
    769 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered April 24, 1989

      David M. Love, City Att’y, for appellant.

      Q. Byrum Hurst, for appellee.
   Robert H. Dudley, Justice.

This case involves a special tax on mixed drinks. The specific issue is whether the City of Hot Springs may collect a three percent “hospitality” tax pursuant to an ordinance enacted by authority of Ark. Code Ann. § 26-75-602 (1987), in addition to the customary ten percent mixed drink tax collected by the City under authority of Ark. Code Ann. § 3-9-213 (1987). The circuit judge ruled: that the hospitality tax could not be added on to the regular mixed drink tax. We affirm.

In 1969, the General Assembly passed Act 132, the mixed drink act. Section 8 of that Act, codified as Ark. Code Ann. § 3-9-213(1987), provided that the sale of alcoholic beverages would be subject to the Arkansas Gross Receipts Act of 1941, and, in addition, imposed a supplemental state tax of ten percent on the gross proceeds or gross receipts from the sale of alcoholic beverages.

Section 9 of the same Act, codified as Ark. Code Ann. § 3-9-214 (1987), provided that an additional supplemental tax could also be imposed upon alcoholic beverages by any city or county, provided that such tax did not exceed the amount provided for in Section 8, ten percent.

Thus, the sale of alcoholic beverages is subject to the general sales tax, the supplemental tax of ten percent imposed by the State in Ark. Code Ann. § 3-9-213 (1987), and potentially to another supplemental tax imposed by the city or county as authorized in Ark. Code Ann. § 3-9-214 (1987).

Pursuant to Ark. Code Ann. § 3-9-214, the City passed Ordinance No. 2989, which, among other things, imposed a supplemental tax of ten percent on the gross revenues from all sales of alcoholic beverages covered under the Act. Thus, all sales of mixed drinks in Hot Springs are subject to the three taxes mentioned above. None of these taxes is questioned. The issue in this case comes about because of the imposition of a fourth tax, a hospitality tax.

Ark. Code Ann. § 26-75-602(a)(l)(B) (1987), which is entirely separate from the mixed drink act, authorizes any city of the first class which is located in a national park to levy a hospitality tax of up to three percent upon the gross receipts from, among other things, restaurants, cafes, cafeterias, and other business establishments engaged in the business of selling prepared food for consumption on the premises in the city. The City interprets this to include mixed drinks. This statute originated with Act 185 of 1965, which was four years before passage of the mixed drink act, and provided that cities having no less than 25,000 inhabitants could levy a tax of one percent upon the gross receipts of restaurants, cafes, cafeterias, and other establishments engaged in the business of selling prepared food for consumption on the premises. This Act has since undergone several modifications, until it has finally evolved into what is now Ark. Code Ann. § 26-75-602. At first the Act authorized a one percent tax. Later, it authorized a two percent tax, and now it authorizes a three percent tax for certain cities.

Over the years, the City of Hot Springs has passed several ordinances pursuant to this statute. The two that are at issue in this case are Ordinance No. 3303 and Ordinance No. 3610. Ordinance No. 3303 was passed in 1975 and levies a two percent tax on the gross proceeds of the restaurants, cafeterias, and other businesses selling food in the City. This ordinance increased the amount of the tax from one percent, as it was pursuant to an earlier ordinance. Then, in 1981, the City passed Ordinance No. 3610, which increased the tax by another one percent, making the total tax on these items three percent, exactly what is authorized by Ark. Code Ann. § 26-75-602(a)(l)(B).

The appellee in this case, the Vapors Theatre Restaurant, Inc., filed suit in circuit court, seeking to have these two ordinances declared invalid to the extent that they impose another tax on the sale of alcoholic beverages.

The trial court ruled that Section 8 of the mixed drink act, Ark. Code Ann. § 3-9-213 (1987), governs the taxation on mixed drinks. It provides: “The taxes herein prescribed may be passed on to the consumer and shall be in lieu of all other special taxes at the retail level.’’'’ The trial court further ruled that the provision must be given a common sense interpretation which means no additional special tax, such as a hospitality tax, can be added to the mixed drink tax.

The appellant City first argues that the trial court erred because the three percent tax is not a tax. Its argument is based upon Section 2 of Act 976 of 1985, not codified but mentioned in the publishers notes to Ark. Code Ann. § 26-75-602, which provides: “This tax is not a ‘tax’ as ‘taxes’ are ordinarily understood and intended for governmental services and support, but is a special levy paid by persons, and collected by entities, peculiarly associated with and benefited by tourism.” The statutory language is farcical. Any burden imposed by a government upon a taxpayer for the use and benefit of that government is a tax, whether labeled tax, levy, duty, custom, gabelle, or anything else.

Appellant next argues that the language in Ark. Code Ann. § 3-9-214, the mixed drink act, which provides that “the taxes herein prescribed may be passed on to the consumer and shall be in lieu of all other special taxes at the retail level” refers only to the taxes authorized by the mixed drink statute and “does not mean that the city is prohibited from placing an additional tax or fee on alcohol as authorized by other statutes.” (Appellant’s brief p. 25) The argument defies our first rule of statutory construction, which is to construe a statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986). Here, the tax on “hospitality” items is a special tax, and all special taxes other than those authorized in the mixed drink act are prohibited. Even if there were any doubt in the language of the statute, we would resolve it against the City because any doubt regarding the imposition of a tax should be resolved in favor of the taxpayer and against the taxing authority. Dunhall Pharmaceuticals, Inc. v. State, 295 Ark. 483, 749 S.W.2d 666 (1988).

Finally, appellant argues that, as to the City, the two taxing statutes have different purposes since the City’s part of the mixed drink act goes to the City’s general fund, while the hospitality taxes go to promote tourism or finance revenue bonds. The appellant demurs to the argument. We sustain the demurrer because the hospitality tax is specifically prohibited, therefore, its intended purpose is immaterial.

Affirmed.


text:
    Ronald WARD v. STATE of Arkansas
    CR 88-145
    770 S.W.2d 109
    Supreme Court of Arkansas
    Opinion delivered April 24, 1989

      Joseph B. Brown, Jr. and Samuel Turner, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

At his first trial of this case the appellant was convicted of capital murder and sentenced to death. He appealed, and we reversed and remanded because of the improper use of peremptory challenges by the State to exclude black people from the jury. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). Upon retrial, appellant was again convicted of capital murder, but this time he was sentenced to life in prison without parole. He now appeals from the second conviction. This time, we affirm.

Because appellant argues that the trial court erred in denying his motion for a directed verdict, it is necessary to recite the evidence in some detail. On April 12,1985, Audrey Townsend and Lois Townsend Jarvis, two elderly sisters, and Chris Simmons, their twelve-year-old great-great nephew, were found dead in the sisters’ home in West Memphis. Each, had multiple deep stab wounds. In addition, Audrey Townsend had been raped, and the house had been ransacked. A large knife was found in the kitchen sink. A witness, Ricky Vail, saw the appellant on the night in question close to Vail’s house, which was just across the street from the victims’ house. Audrey Townsend’s vagina contained semen from someone who had type O blood and who secreted the H factor into his blood; appellant had type O blood and is a secretor of the H factor. A hair was found on the underwear which Audrey Townsend was wearing when she was raped and murdered; that hair is microscopically similar to hair taken from appellant’s head. A pubic hair was removed from the pubic area of Audrey Townsend; that hair had the same microscopic characteristics as a hair taken from appellant’s pubic area. Two hairs were found on a sweater seized from appellant’s bedroom; one, a pubic hair, was microscopically similar to the pubic hair of Lois Townsend Jarvis, and the other was microscopically similar to the hair on the head of Chris Simmons. Appellant’s fingerprints were found on broken pieces of glass which were recovered from the crime scene. Appellant’s fingerprints were on an insurance notice which was found at the crime scene. His fingerprint was found on a window pane at the rear of the victims’ house. His fingerprint was found on a light bulb which was near the back door of the victims’ house. His fingerprints were found on the doorknob of a closet in a bedroom of the victims’ house. His fingerprints were found on the kitchen window of the house. Appellant gave a lengthy in-custodial statement in which he said that someone named Ike forced him to break in, ransack the house, leave his fingerprints all about, rape Audrey Townsend, and then Ike committed the murders; appellant never could recall Ike’s last name, nor could he locate him. Just before the initial hearing, the police heard appellant tell his attorney, “Um, something just came over me, its just like, I didn’t mean to, just something came over me, made me go in that house and stuff like that, I didn’t, I just wasn’t myself.”

Appellant contends that the foregoing evidence does not show that he acted with a premeditated and deliberated purpose in killing two or more people in one criminal episode. See Ark. Code Ann. § 5-10-101 (a)(4) (Supp. 1987). In order to prove that an accused acted with a premeditated and deliberated purpose the State must prove: (1) that the accused had the conscious object to cause the death of another; (2) that the accused formed the intention of causing the death before acting; and (3) that the accused weighed in his mind the consequences of a course of conduct, as distinguished from acting suddenly on impulse without the exercise of reasoning power. Ford v. State, 276 Ark. 98, 633 S.W.2d 3, cert. denied, 459 U.S. 1022 (1982). A defendant’s premeditated and deliberated culpable mental state can be inferred from the circumstances of the murder, such as the character of the weapon used, the manner in which it was used, the nature, extent, and locations of the wounds inflicted, and the conduct of the accused. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). Premeditation and deliberation are not required to exist for any particular length of time and may, in fact, be formed in an instant. Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987). Such intent may and often must be inferred from circumstantial evidence. Garza v. State, supra.

Here, breaking into the victims’ house, ransacking the house, raping one of the women, and then inflicting numerous, deep, and fatal stab wounds with a large knife upon three different victims is substantial circumstantial evidence of a premeditated and deliberated culpable mental state.

Appellant next argues that the trial court erred in excluding the proffered testimony of John Golden. The argument is without merit. Appellant wanted to call John Golden to testify that a Ricky Smith had supposedly told Golden that Smith and another man had planned to kill three white people in West Memphis, take their cocaine, and blame it on a fifteen-year-old boy named Ward (appellant). Ricky Smith was available to testify but appellant apparently did not want to call him because he would deny having ever made such a statement. Appellant sought to introduce Smith’s alleged hearsay statement through Golden by A.R.E. § 803(24), the residual exception. The rule provides that a statement should not be excluded as hearsay, even though the declarant is available, when the statement is trustworthy and reliable. A good example of the rule in use is where a postmark, which is reliable hearsay, is offered to prove that a letter was mailed from the city shown on the postmark. See U.S. v. Cowley, 720 F.2d 1037 (9th Cir.), cert. denied, 465 U.S. 1029 (1983). We have said it “must have circumstantial guarantees of trustworthiness equivalent to those supporting common law exceptions.” Blaylock v. Strecker, 291 Ark. 340, 350, 724 S.W.2d 470, 475 (1987). It is intended that the residual hearsay exception rule will be used very rarely, and only in exceptional circumstances. Cotchett and Elkind, Federal Courtroom Evidence 286 (1987).

In determining trustworthiness or reliability, we ordinarily will not look so much to the reliability of the original declarant,, but instead to the reliability of the statement itself. This is because the reliability or credibility of the declarant is more a matter for the jury, rather than a matter of admissibility. However, in this case, there was testimony that John Golden had been in a mental institution, was presently under the care of a psychiatrist, is easily misled, is prone to fantasize, gets confused often, makes up stories to fit a situation, and “lives in his own world.” More importantly, John Golden originally told the police that on April 11, one day before the murders, that Ricky Smith had stolen a large amount of money and asked for a ride to Horn Lake, Mississippi. Golden told the police he took Smith to an apartment in Horn Lake where they saw a white man dressed in cowboy attire. Golden did not mention Smith blaming the murders or anything else on appellant. Even though the police had not had a report of anyone stealing money, they went to the apartment, which turned out to be a duplex, and found a black man occupied one side and a white man the other. Neither wore cowboy attire nor knew Smith. Later, after the murders had occurred, and after the media reports of them, Golden began to change his story. He also asked for a reward. Still, it was not until the first trial of this case that Golden disclosed any information, supposedly gained on the way to Horn Lake, about Smith disclosing a plot to blame appellant for the murders. Golden’s statement clearly did not meet the standard for trustworthiness or reliability.

The appellant next argues that the trial court erred in admitting an in-custodial statement. This argument is also without merit. The appellant was given his Miranda warning and gave an inculpatory statement. A few days later two policemen took him to the Municipal Court in West Memphis for the appointment of a defense attorney and the setting of bond. One of the policemen took along a tape recorder. It was in plain sight as it had a strap which was around the policeman’s neck. The officers, the appellant, and the public defender were standing in a hallway just outside the courtroom. The public defender twice asked the appellant if the police had explained his rights. He responded affirmatively both times. He then specifically asked appellant if he understood that anything he said could be used against him. Again, he answered, “yes sir.” The attorney again cautioned appellant to keep that warning in mind and even again asked if appellant understood that anything he said could be used against him. The appellant again said he understood. In other words, the public defender twice asked appellant if he understood his rights and twice specifically asked if he understood that anything he said could be used against him. All four responses were “yes.” Counsel further advised appellant to keep that warning in mind. The public defender asked appellant if there was anything which appellant wanted the attorney to tell the judge. The appellant said he had never been in trouble before, and then, in front of the police, blurted out another incriminating statement.

The actions of the public defender do not constitute ineffective assistance of counsel. The appellant did not offer any proof about the layout of the courtroom or any adjacent rooms, or whether the attorney could have held a private conversation with appellant. The attorney was not called and asked about the circumstances of the event or surroundings. The public defender did not ask a question which caused the incriminating statement. Certainly, after the four questions about appellant’s rights, and four affirmative responses, plus the warning, counsel could not have anticipated that the appellant would blurt out an incriminating statement.

Even if counsel’s conduct were professionally unreasonable, the judgment of conviction must stand because appellant has not demonstrated that the error had a prejudicial effect on the outcome of his trial. See Strickland v. Washington, 466 U.S. 668 (1984) and Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985) .

The appellant, who was fifteen years old at the time he committed the murders, next argues that the trial court committed error in excluding three prospective jurors because they were unalterably opposed to the death penalty. See Thompson v. Oklahoma, _U.S. _, 108 S. Ct. 2687 (1988). The appellant raised this point at his first trial, but did not raise it at the second trial. It was necessary for him to bring the issue before the trial court at the second trial in order to have the issue preserved for this second appeal. When a case is broadly remanded for a new trial, as this one was, evidentiary objections must be made, the same as if there had been no first trial. See Sanders v. Walden, 214 Ark. 523, 217 S.W.2d 357 (1949).

However, even if the issue had been preserved, and even if Thompson v. Oklahoma, supra, were a clear majority opinion dictating that appellant could not be sentenced to death, we would not reverse. Here, the State sought the death penalty in a bifurcated trial. Accordingly, the jury was death qualified. However, after the jury took thirteen hours to decide the guilt phase of the trial, the prosecutor apparently realized the improbability of the jury imposing the death penalty, and waived the second phase, or death penalty phase, of the trial. If a defendant in a capital case does not receive the death penalty, he cannot obtain reversal of his conviction and sentence on appeal by pointing to errors having to do with the jury’s consideration of the death penalty. Allen v. State, 296 Ark. 33, 39, 751 S.W.2d 347, 350 (1988). In addition, because the State had not yet decided to waive its right to seek a death sentence when the jury was picked, the trial court did not err in death qualifying the jury. See Buchanan v. Kentucky, 483 U.S. 402 (1987), which held that a joint trial of a defendant, against whom the death penalty is not sought, along with a co-defendant, against whom the death penalty is sought, does not deprive the defendant of his right to an impartial jury if the jury is death qualified.

Appellant’s next two points of appeal are governed by the law of the case doctrine. See Hickerson v. State, 286 Ark. 450, 693 S.W.2d 58 (1985). First, he argues that five photographs were unfairly prejudicial. These same photographs were admitted in the first trial, and we approved their use. Ward v. State, 293 Ark. at 101. Second, he argues that the use of his fingerprints was error. We have already rejected that argument. Ward v. State, supra, 293 Ark. at 99-100.

Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals of Arkansas, we state that we find no unassigned error which would cause reversal of this sentence to life without parole.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In reversing this case the first time (see Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987)), this court noted the failure of the trial court to allow the testimony of witnesses Golden and Langford that Harry Smith made statements against his interest. The opinion stated that the testimony of witnesses Golden and Langford would not be admissible “unless corroborating circumstances clearly indicate the trustworthiness of the statement.” The opinion further stated that on retrial the judge should make the determination of trustworthiness before deciding if the proffered testimony would be admitted. Upon retrial, when the testimony of Golden was offered, the judge stated: “I am absolutely 100% convinced that my initial ruling three years ago when this case was tried first — that it was inadmissible hearsay — was correct.” Such a ruling hardly complies with the mandate in this case.

At the first trial the judge, apparently relying on Arkansas Rules of Evidence Rule 804(b)(5), which applies in the case of unavailable witnesses, ruled that Golden’s testimony was inadmissible. Smith, so they said, was unavailable. In fact, the general tone of the state’s testimony and presentation was that no such person existed. The court and local authorities evidently considered Smith to be a figment of Golden’s imagination. However, at the second trial, after the appellant’s attorneys brought up information concerning the missing witness, the court remarked that the local police had located Smith within fifteen minutes after starting to search for him. Thus, a man who was only a figment of the imagination of a witness at the first trial appeared at the instance of the state within fifteen minutes after information was revealed by the defense attorneys regarding his present location and his previous statements against interest.

The question of the testimony concerning statements of Harrison Smith (a/k/a Harry Smith, a/k/a Rick Smith, and a/ k/a James Brown), figured in the first reversal and should require a second reversal. After long and laborious efforts to get the alleged statement of witness Smith introduced into evidence at the appellant’s second trial, the trial court ended the matter by stating:

Gentlemen, here’s my ruling, and I don’t want to hear anymore about this. I am absolutely 100% convinced that my initial ruling three years ago when this case was first tried — that it was inadmissible hearsay — was correct. I am even more convinced after hearing and observing the demeanor of the so-called Harrison Smith that my ruling was correct. It’s inadmissible hearsay. ... I am going to — let me tell you a few things that are incredible to me, and I am getting tired of this charade. It’s incredible to me that in fifteen minutes of effort the police produced the witness that you claimed to have been trying to find. . . . My ruling stands. Let’s get on with it. ,

The discussion at the first trial concerning the attempt to locate Smith and to have him served with a subpoena, culminated with the court’s statement: “Well, it doesn’t prove he existed, it just proves he attempted to serve a summons on somebody given at that address. Whether they existed or not, I don’t know and he doesn’t either.”

The court ruled at the first trial that the testimony of Golden and Langford was inadmissible under A.R.E. 804(b)(5), which applies when the declarant is unavailable. It is quite obvious to me that the appellant in the first instance offered the hearsay statement of Harry Smith as a statement against interest pursuant to A.R.E. Rule 804(b)(3). Certainly that is essentially the argument which the appellant presents at both trials. A.R.E. Rule 803(24) and A.R.E. Rule 804(b)(5) are identical and read as follows:

Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of truth worthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rulés and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

The rationale for allowing statements of this kind to be introduced is predicated upon the fact that the declarant has admitted to the commission of an act which would hold him up to public ridicule and contempt or expose him to civil or criminal actions in court. See A.R.E. Rule 804(b)(3).

The trustworthiness of the statement of Smith is the matter the trial court should have considered. However, it appears the court decided the trustworthiness of the testimony of Golden and Langford. Without any citation of authority, the majority of this court makes exactly the same mistake.

Rule 803(24) allows into evidence “a statement. . .having equivalent circumstantial guarantees of trustworthiness . . .’’as an exception to the hearsay rule. The very words of the rule indicate that the key to the question is governed by the circumstances surrounding the making of the hearsay statement — in this case, the circumstances surrounding Smith’s statements to Golden. The majority opinion, without expressly saying so, suggests that the decision is governed by the circumstances surrounding the mental stability of witness Golden, in effect reducing the question to one of Golden’s credibility. I submit that the truthworthiness of the testimony of Golden and Langford was a matter of credibility to be considered by the jury.

In support of the reliability of both the proffered testimony of Golden and Langford and the statements against the interest of Smith, certain facts are not disputed. Golden and Langford stated that Harry Smith paid them twenty dollars on April 11, 1985, to drive him from West Memphis, Arkansas to an apartment and to a mobile home (in which he claimed to reside) just south of Memphis, Tennessee. Golden informed the police about carrying Smith to Mississippi, and told them that Smith claimed to have helped rob some white people of a large amount of money and drugs and that Smith bragged that he was going back that night to finish the job. Smith boasted that they would read about it in the paper. Later, Golden stated that Smith had told him that Smith and some other people were going to rob and murder some white people and lay it off on a boy named Ward. It was disputed whether the name Ronald Ward was mentioned to the police before or after Golden learned that Ward was being investigated. The evidence indicates that Golden went to the police on the 12th of April to try to tell them what Smith had told him. The police were very,busy investigating a triple murder at the time. They were too busy to talk to Golden and told him to come back on Monday, the 15th. Golden asserts that when he went back, he mentioned Ward’s name or, at the very least, that he told the police that Harry Smith had informed him that Smith was involved in a crime which would fit the facts of the present case.

Ronald Ward was not picked up until April 16 or 17 and them only for identification and fingerprinting. Golden told the police that Smith had also carried some drugs to Mississippi. The proffer included testimony that Harrison Smith was overheard talking with a white man about plans to kill three white people, rob them of cocaine, and pin the crime on a fifteen-year-old boy named Ward.

The testimony of local officials was that Golden was something of a schizophrenic, that he could not be trusted to furnish reliable information, and that he lived in a world of his own. (See the majority opinion for all his blemishes.) However, it should be noted that the police put Golden in the car with them and retraced the steps from West Memphis to Mississippi; Golden took them to the apartment, where the people failed to identify Smith, and then to the mobile home where Smith lived. Smith’s mother was located at that address, and some drugs were found, just as Golden had indicated they might be. It seems to me that, as far as the state was concerned, Golden was reliable when he was furnishing information favorable to the state’s case, but unreliable when he was furnishing information which would be helpful to the defense. Golden furnished additional information which caused the police in Waukegan, Illinois, to arrest and detain Smith.

In my opinion, the reliability of the testimony of Langford and Golden was established when the officer located the residence where Smith lived (and where his mother still resided), and further when they found the illegal drugs at that location. After Smith was located by the police and brought in, he testified that some people took him to Mississippi after he had left his job on April 11,1985. He stated that he then left Mississippi and went to Waukegan, Illinois. His mother stated that she carried him to the bus station at 4:00 or 4:30 p.m. on April 12, 1985. The bodies of the three victims were discovered on April 12, but they may have been killed before midnight on April 11.

The other point on which I disagree with the majority is its conclusion that the first counsel appointed to represent the appellant was not ineffective. It would serve no purpose to cite cases in this instance because it is purely a fact question. In my opinion, no effective defense attorney should have his first interview with his client in the presence of a police officer who, with the attorney’s knowledge, is recording the statement. This grossly ineffective assistance by itself should have rendered the statement recorded by the policeman inadmissible.

Some of the decisions of this court dealing with the test of trustworthiness under Rules 803 and 804 are Hill v. Brown, 283 Ark. 185, 672 S.W.2d 330 (1984); Tillman v. State, 275 Ark. 275, 6 S.W.2d 5 (1982); Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982); and David v. State, 269 Ark. 498, 601 S.W.2d 864 (1980). This court noted in Hill that all the common-law exceptions to the hearsay rule are based upon necessity or some compelling reason for attaching more than average credibility to the hearsay. “Consequently any new exception must have, in the language of the Rule, circumstantial guarantees of trustworthiness equivalent to those supporting the common-law exceptions.” Hill at 190.1 submit that Smith’s statement meets this requirement.

I have no doubt that the proffered testimony of Golden and Langford should have been allowed in evidence because of the very nature of Smith’s statements. The trustworthiness of the proffered testimony was clearly established by the extremely incriminating character of these statements. Moreover, the statement: (1) concerned a material fact, (2) was more probative for the purpose offered than any other evidence, and (3) the interests of justice would have best been served by admission of the statements into evidence. The proffered testimony should have been admitted as a clear exception to the rule against hearsay as defined in A.R.E. Rules 803 and 804. It is the responsibility of the jury, not the court, to decide the credibility of this testimony.


text:
    Dan WILBURN v. KEENAN COMPANIES, INC.
    89-33
    768 S.W.2d 531
    Supreme Court of Arkansas
    Opinion delivered April 24, 1989

      Richard L. Peel, for appellant.

      Jonathan P. Shermer, Jr. for appellee.
   Robert H. Dudley, Justice.

This is an appeal from the refusal to set aside a default judgment. On November 20, 1987, plaintiff, now appellee, Keenan Companies, Inc., filed suit against defendant, now appellant, Dan Wilburn. Appellee is a resident of the State of Arkansas, and appellant is a resident of the State of Missouri. Appellee forwarded a copy of the summons and complaint to appellant by certified mail. At the top of the receipt for certified mail delivery, there are two boxes explaining additional services which are available for additional fees. The second box is for “Restricted Delivery.” That box was not marked in any way, nor was there any evidence that appellee had requested that the summons and complaint be mailed with “restricted delivery.” Appellee received a return receipt on which the signature of “L.D. Madden” was written. Madden’s signature was on line 6 of the return receipt which is entitled, “Signature — Agent.”

On January 21, 1988, a default judgment was entered against appellant. On January 25,1988, appellant filed an answer to the complaint and also a motion to set aside the default judgment. After a hearing, the trial court found that service upon appellant was effective and denied his motion to set aside the judgment.

Appellant argues that the default judgment against him is void because the summons and complaint were not mailed with delivery restricted to the addressee as required by the Arkansas Rules of Civil Procedure. The argument has merit, and, accordingly, we reverse the trial court’s refusal to set aside the default judgment.

ARCP Rule 4(e)(3) provides:

(e) Other Service: Whenever the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:
(3) By any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee.

(Emphasis added.)

The Reporter’s Notes concerning the 1983 amendment to Rule 4 explain that, “[p]ostal regulations permit mail addressed with delivery restricted to addressee to be received only by the addressee or an agent appointed according to postal regulations.'1'’ (Emphasis added.) Further, the Reporter’s Notes concerning the 1986 amendment to the rule provide:

Rule 4(e)(3) is amended to make explicit that service by mail outside the state must be sent with restricted delivery, thus harmonizing the provision with Rule 4(d)(8), which governs service by mail within the state.

(Emphasis added.) Section 933.41 of the postal regulations directs mail carriers to, “[d]eliver mail marked Restricted Delivery only to the addressee or to the person specifically authorized in writing as the addressee’s agent to receive the mail.” Domestic Mail Manual (1988).

Thus, the term “restricted delivery” denotes a very specific delivery procedure within the postal service. ARCP RuL 4(e)(3) requires the use of that procedure if service is to be made by mail.

Statutory service requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978). The same reasoning applies to service requirements imposed by Rules of Court. Proceedings conducted where the attempted service was invalid render judgments arising therefrom void ab initio. Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1971); Edmonson v. Farris, 263 Ark. at 508. In cases where judgments are void, proof of a meritorious defense is unnecessary. Edmonson v. Farris, 263 Ark. at 508.

Appellee’s service of the summons and complaint in the instant case did not meet the requirements of ARCP Rule 4(e)(3). There was no evidence that appellee had directed the summons and complaint to be mailed with restricted delivery. Nor was there any evidence that appellant had specifically authorized, in writing, that L.D. Madden was to be his agent to receive mail. Consequently, the default judgment was void ab initio, and the trial court erred in denying appellant’s motion to set it aside.

In the instant case, there was no evidence that appellant had actual knowledge of the proceedings against him prior to the entry of the default judgment. We note, however, that the outcome of this appeal would have been the same even if appellant had had actual knowledge. Actual knowledge of a proceeding does not validate defective process. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). To the extent that the opinion in Southern Paper Box Co. v. Houston, 15 Ark. App. 176, 690 S.W.2d 745 (1985) conflicts with that rule, it is overruled.


author: Tom Glaze, Justice.

text:
    Regina BOLTS v. DELTIC FARM AND TIMBER CO., INC. and Gary Coffman
    88-295
    768 S.W.2d 532
    Supreme Court of Arkansas
    Opinion delivered April 24, 1989

      Felver A. Rowell, Jr., for appellant.

      Baxter, Eisele, Duncan & Jensen, for appellee.
   Tom Glaze, Justice.

Regina Bolts brought suit against Deltic Farm and Timber Co. and Gary Coffman for injuries she received in a collision with a lumber truck, driven by Coffman. Deltic Farm and Timber Co. filed a motion for summary judgment alleging that Coffman was not an agent, servant or employee at the time of the accident. The trial court granted Deltic’s motion for summary judgment, leaving Coffman as the only defendant in the lawsuit.

[1, 2] Bolts attempts to appeal from the trial court’s order granting summary judgment. We dismiss the appeal for lack of an appealable order. Pursuant to ARCP Rule 54(b), when multiple parties are involved, the trial court may direct the entry of a final judgment as to one or more but fewer than all of the parties only upon express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the present case, there was no such determination or directive. This court has repeatedly held that unless Rule 54(b) is complied with, there cannot be an appeal from an order dismissing one defendant when other defendants remain. See, e.g., Rone v. Little, 293 Ark. 242, 737 S.W.2d 152 (1987); Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987).


text:
    Jerry KELLY v. STATE of Arkansas
    RC 89-14
    768 S.W.2d 533
    Supreme Court of Arkansas
    Opinion delivered April 24, 1989

      Terry Crabtree, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant files a motion for belated appeal. His motion, with affidavit attached, originally asserted that he did not receive a copy of the trial court’s order denying his Rule 3 7 petition until after his appeal time had expired. He further alleged the court’s order failed to reflect that notice denying his petition was ever sent to appellant or his attorney. Appellant cites Rule 37.3(d) of the Rules of Criminal Procedure and Porter v. State, 287 Ark. 359, 698 S.W.2d 801 (1985), for the proposition that the circuit court was required to mail him a copy of the post-conviction order.

We find appellant’s motion for belated appeal confusing, because someone crossed out with a pen the original allegations that indicated he never received notice of the trial court’s order. After this alteration, his motion now reads that his attorney did not receive notice. The attorney general’s office has filed a response, but offers no explanation for the lines drawn through the appellant’s allegations, nor does the attorney general indicate it investigated whether the trial court may have mailed its post-conviction order to the appellant.

Obviously, the striken portion contained in appellant’s motion raises the question that appellant may have received notice of the trial court’s order. Nonetheless, we are unable to make any clear determination concerning this critical point, and for that reason, we remand this cause to the trial court for it to conduct a hearing to determine why appellant’s motion was changed or modified and whether the notice requirement under Rule 37.3(d) was complied with.


author: Jack Holt, Jr., Chief Justice.

text:
    Steve ELDRIDGE, and Others, as a Class v. BOARD OF CORRECTION and Department of Correction of the State of Arkansas
    88-222
    768 S.W.2d 534
    Supreme Court of Arkansas
    Opinion delivered May 1, 1989

      W. Swain Perkins and Larry Dean Kissee, for appellants.

      Steve Clark, Att’y Gen., by; Leslie M. Powell, Asst. Att’y Gen., for appellees.
   Jack Holt, Jr., Chief Justice.

Appellant Steve Eldridge, on behalf of a class of individuals, brought suit for declaratory and injunctive relief challenging on several different grounds the site selection for an adult detention facility by the appellee Department of Correction. Relevant to this appeal is Eldridge’s claim that the Department failed to comply with the notice and hearing provisions of the Arkansas Administrative Procedure Act, Ark. Code Ann. §§ 25-15-201 — 25-15-214 (1987). In response to the complaint by Eldridge, the Department moved to dismiss the suit for failure to state facts upon which relief could be granted and, in the alternative, asked that summary judgment be entered in its favor. The court entered an order granting both motions. From that order comes this appeal. We affirm.

Although the chancellor’s order reflects the granting of the Department’s motion to dismiss as well as the motion for summary judgment, Eldridge acknowledges in his brief that the trial court treated the entire proceeding as one for summary judgment. A review of the record supports Eldridge’s observations, and the combined motions to dismiss and for summary judgment should be resolved in accordance with our summary judgment rule — ARCP Rule 56.

ARCP Rule 12(b) provides that if, on motion to dismiss for failure to state a claim, matters outside the pleading are presented to and not excluded by the court, the motion “shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Here, the court’s order recites that the chancellor considered the “motions, the responses thereto, as well as the pleadings, briefs, exhibits attached thereto, and other matters.” Thus, we review this case as any other where there is an appeal following summary judgment. Carter v. F. W. Woolworth Co., 287 Ark. 39, 696 S.W.2d 318 (1985); Guthrie v. Tyson Foods, 285 Ark. 95, 685 S.W.2d 164 (1985).

Eldridge claims that in granting summary judgment the chancellor erred in considering matters contained in the parties’ briefs and exhibits attached thereto. To support his position, he cites our opinion in Guthrie, supra, where we said that, in treating a motion to dismiss as one for summary judgment, it would have been incorrect for the court to base its decision on allegations in briefs and attached exhibits. We then cited ARCP Rule 56(c), which limits the court to considering the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any.

While the language in Guthrie may have been somewhat imprecise, the clear import of our discussion was that it would be error for a court on motion for summary judgment to consider any allegations brought out for the first time in the parties’ briefs and exhibits attached thereto. Such new matters would, of course, go beyond the scope of the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits, thus being improper under Rule 56(c). We did not mean in Guthrie, nor do we mean to imply now, that the parties cannot submit briefs in support of a motion for summary judgment or that the court ought not entertain argument by counsel on the motion.

Eldridge is correct in his argument, therefore, only to the extent the chancellor considered matters in the briefs and exhibits which had not been raised previously. We held in both Guthrie and Carter, supra, that the error would be of no consequence if this court determined that summary judgment was nonetheless proper.

In arguing that it was error to grant summary judgment, Eldridge maintains that the chancellor disposed of a genuine issue of fact when he ruled that the site selection for an adult detention facility by the Department of Correction does not constitute the adoption of a rule as that term is defined by the Administrative Procedure Act. Eldridge further argues that the chancellor incorrectly ruled in favor of the Department of Correction on that issue. We disagree with Eldridge on both points. The question before the chancellor was one of law, not fact, and we have no hesitancy in affirming the chancellor’s conclusion that the Department’s activity involved neither rule making nor the adoption of a rule.

Ark. Code Ann. § 12-27-103(a) and (b)(9) (1987) provide that there is established, under the supervision, control, and direction of the Board of Correction, a Department of Correction, which shall have the function, power, and duty, in accordance with the rules and regulations of the Board, to establish and operate regional adult detention facilities. The legislation in question, the Administrative Procedure Act, applies to the various boards, commissions, departments, officers, or other authorities of the State of Arkansas, with such exceptions as are set forth in Ark. Code Ann. § 25-15-202(1 )(B). The Department of Correction is not excepted and is therefore subject to the Act.

Apparently, the part of the Act that prompted the suit by Eldridge is section 25-15-204, which sets forth a variety of procedural due process requirements, such as notice and the right to file arguments, which must be met any time an agency subject to the Act either adopts, amends, or repeals any “rule.” Section 25-15-202(4) defines “rule” as any agency statement of general applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice of any agency. Subsection (5) defines “rule making” as any agency process for the formulation, amendment, or repeal of a rule.

Eldridge strongly argues that the decision by the Department of Correction to establish an adult detention facility is a statement of general applicability that implements the law authorizing the Department to establish such facilities. While this construction perhaps involves an interesting argument in semantics, the action of the Department was no more than the carrying out of legislatively mandated administrative duties under section 12-27-103 and not the adoption of a rule within the meaning of section 25-15-202(4) and (5).

Here, the term “rule” has been defined for us, and subsections (4) and (5) of section 25-15-202 were obviously drafted to address those instances in which an agency subject to the Act either formulates, amends, or repeals statements of general applicability and future effect which implement, interpret, or set out provisions having legal consequences, or which describe departmental policies, or explain the organization, procedure, or practice of an agency. Our first rule of construction as to the language of any piece of legislation is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986). Site selection for the construction of an adult detention facility does not fall anywhere within the definition of the term “rule” as contained in the Act, if for no other reason than that it does not constitute an agency statement of general applicability.

We note that in the complaint by Eldridge there is a claim that the action of the Board of Correction, and hence, the Department of Correction, constituted special or local legislation in violation of the Arkansas Constitution. In his brief on appeal, Eldridge makes vague reference to that claim and suggests there remained a genuine issue of fact on that point. However, Eldridge offers no argument to support his position and makes no reference to the chancellor’s resolution of this issue in the order on appeal. We find the claim to be entirely without merit and see no need to discuss the point further.

Because no issue of fact was presented to the chancellor, and because the Department’s actions did not constitute the adoption of a rule or rule making as defined by the Act, it was not error to grant the motion for summary judgment.

Affirmed.


text:
    SAVERS FEDERAL SAVINGS AND LOAN ASSOCIATION of Little Rock, Arkansas v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION of Harrison, Arkansas
    88-260
    768 S.W.2d 536
    Supreme Court of Arkansas
    Opinion delivered May 1, 1989
    [Rehearing denied May 30, 1989.]

      Hoover, Jacobs & Storey, by: O.H. Storey III and William C. Mann III, for appellant.

      Frank H. Bailey, Benjamin F. Mann, and Michael Thompson, for appellee.
   Darrell Hickman, Justice.

First Federal Savings and Loan of Harrison (First Federal) entered into a loan participation contract with Savers Federal Savings and Loan (Savers). The question on appeal is whether the circuit court was correct in declaring that First Federal effected a “legal rescission” of the contract and was entitled to full restitution of its funds expended, less its return on investment. We find there was no rescission at law and remand the case for further proceedings.

In 1983, Savers was the lead lender on a $3.31 million construction loan made to Woodlake Manor, a retirement condominium development in Texas. In response to an offering memorandum from Savers, First Federal purchased a 30% participation interest in the loan, which amounted to $981,718.51. The memorandum contained an appraisal which estimated the undiscounted market value of the project at $4,152,80o.

Just two months later, it was discovered that several appraisals contained in Savers’ loan files did not comply with a Federal Home Loan Bank Board guideline known as R41B. That guideline required an appraiser to take into account the discounted value of the property. Savers wrote to the appraiser on the Woodlake Manor project and asked if his appraisal was prepared in compliance with R41B. He said no, and submitted a supplemental appraisal declaring the value at $2,903,700.

That appraisal presented an immediate problem because the loan exceeded the value of the property. Savers wrote to the appraiser again, challenging the new figure. The point of contention was whether the developer’s profit should be deducted in the discounting process. The appraiser agreed not to deduct it, resulting in a new appraised value of $3,572,200 as of August 24, 1984. Savers never informed First Federal of the subsequent appraisals.

The new appraisals had a definite impact on the creditworthiness of the loan. Under the original appraisal, the loan amount was 79.5% of the property value; under the final appraisal, the loan to value ratio was over 90%.

Woodlake defaulted on the loan in 1985 and Savers foreclosed on the property. More than a year later, First Federal discovered the existence of the other appraisals. An officer of First Federal wrote to Savers that if it had known of the new appraisals, it would have stopped disbursements on the loan until the project could be reevaluated. The letter also declared, “we have no other recourse but to ask Savers Federal to repurchase our participation interest or we will be required to pursue other means to resolve the issue.”

Savers refused and First Federal filed suit in Pulaski County Circuit Court. The complaint alleged breach of warranty, breach of fiduciary duty, constructive fraud and mutual mistake. The relief prayed for was rescission or alternatively, for damages.

The trial judge, sitting as factfinder, declared that Savers’ use of the original, undiscounted appraisal which did not meet FHLB guidelines was not fraud or a breach of duty. First Federal should have known about R41B just as Savers should have. But the judge did find that Savers breached its fiduciary duty and was guilty of constructive fraud in not informing First Federal of the new appraisals.

As a result of Savers’ breach, the judge awarded damages of $876,480.16, which is the amount First Federal paid out, less its return on investment. Savers protested that the award exceeded the damages actually caused by the breach and that the circuit court lacked jurisdiction to grant rescission. The judge refused to compute damages based on causation, declaring he could not compel First Federal to remain in a relationship with an untrustworthy fiduciary. He also stated that First Federal’s letter to Savers effected a rescission at law.

We agree with Savers that First Federal’s actions did not amount to a rescission at law. Rescission at law is accomplished when one party to a contract tenders or returns to the other party the benefits received under the contract. It simply means a party, by his acts, rescinds the agreement. Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988). See also Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980). The difference in rescission at law and in equity is explained in D. Dobbs, Pressing Problems for the Plaintiff's Lawyer in Rescission, 26 Ark. L. Rev. 322 (1972):

If the plaintiff has adequate grounds for avoiding the transaction, his notice to the defendant that he had done so, accompanied by restoration to the defendant of benefits received by the plaintiff in the transaction, will itself amount to a rescission. This is called rescission at law, meaning rescission under the theory used in law, rather than equity, courts. The theory here is that the court has nothing to do with the rescission of the transaction; that is accomplished by the plaintiff when he notifies the defendant and returns what he has received under the transaction.

The plaintiffs restoration to the defendant of benefits received in the transaction constitutes the “tender” requirement. According to Dobbs, many courts hold that tender must be complete and unequivocal. In Anson v. Grace, 174 Neb. 258, 117 N.W.2d 529 (1962), a purchaser of land sent a “notice of rescission” promising to reconvey the property to the seller. The court held the tender requirement was not met.

First Federal’s letter did not offer to restore the benefits First Federal received under the agreement. It was an equivocal statement. Since there was no effective tender, there was no rescission.

This error might not make a difference if the Arkansas legal system were like most states with courts which deal with questions of both law and equity. But we have separate courts, and it is important to keep the line drawn between what cases belong in circuit court and what cases must be decided in chancery. Since First Federal did not accomplish a legal rescission, the circuit court fashioned an equitable remedy when it allowed rescission and restitution. That could only have been done in a court of equity.

This means the judgment must be reversed and remanded for further proceedings.

Reversed and remanded.

       When an appraisal value is “undiscounted,” it means no adjustments have been made for costs to be incurred while the property is awaiting sale, such as insurance, taxes, etc.

       The participation agreement provided that Savers would act as a fiduciary in administering and servicing the loan.


author: John I. Purtle, Justice.

text:
    Christopher KING v. STATE of Arkansas
    CR 88-170
    769 S.W.2d 407
    Supreme Court of Arkansas
    Opinion delivered May 1, 1989

      Matt Keil, for appellant.

      Steve Clark, Att’y Gen., by; Clint Miller, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted of rape and burglary and was sentenced to consecutive terms of life and thirty years in prison. On appeal he argues that the court erred in not granting his motion for mistrial and in failing to suppress the in-court identification by the victim. We do not agree with either argument and therefore affirm the action taken in the trial court.

The victim was raped twice on February 28,1987. At about 2:30 a.m. an intruder raped the woman in her bedroom after ordering her to take off her clothes. Although the victim is nearsighted and was not wearing glasses when her attacker raped her, she later testified that he was close enough for her to identify him when he first approached while the bedroom light was still on. Following the rape, the victim told her attacker that she had some money in a purse in an adjacent hallway. In order to locate it, the intruder turned on the hall light. When he returned with the purse, he allowed the victim to get her glasses, and she was able to see him well. The intruder raped the victim a second time before he left the house at about 6:00 a.m. As he left he turned on a light, and she observed his features again.

On March 10, 1987, the appellant was in custody on a related charge when he was placed in a lineup at which the rape victim identified him as her attacker. The appellant had not been charged with either the rape or the burglary at that time.

During the trial the victim made an in-court identification of the appellant. After extensive cross-examination by the defense counsel, the victim, who had walked in front of the jury as she was leaving the courtroom, appeared to faint or collapse in the exit doorway. The trial court overruled the appellant’s motion for a mistrial at that point and subsequently instructed the jury to disregard the incident.

We first consider whether the court erred in failing to grant a mistrial at the time the victim collapsed in the jury’s presence. A mistrial is an extreme and drastic remedy which will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). The decision whether to grant a new trial is left to the sound discretion of the trial judge and will not be reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party. Foster v. State, 294 Ark. 146, 741 S.W.2d 251 (1987). Generally a cautionary instruction will take care of unusual events such as this. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982). There are circumstances, however, in which statements or actions in the jury’s presence are so highly prejudicial that they violate the accused’s right to a fair trial, and no admonition to the jury can cure them. Dean v. State, 272 Ark. 448, 615 S.W.2d 354 (1981); Sharron v. State, 262 Ark. 320, 556 S.W.2d 438 (1977); and Hughes v. State, 154 Ark. 621, 243 S.W. 70 (1922).

It is unfortunate that the victim collapsed in the presence of the jury. There is, however, no indication whatsoever that either the victim or the state orchestrated this action for the jury’s benefit. The court admonished the jury to render its verdict on the basis of the testimony and instructions and to put aside prejudice, sympathy and the like. He specifically directed the jurors not to consider the witness’s collapse in their deliberations. The court’s admonition to disregard the incident was apparently as effective as words can be in directing the jury to not consider the matter in reaching a verdict.

We recently decided a case which is factually similar to the present case. In Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989), we upheld the trial court’s denial of a continuance following the testimony of a rape victim who was in obvious pain and discomfort and who communicated her condition to the jury through language and groans and grunts. Earlier, in considering the refusal of a trial court to grant a mistrial, we approved an admonition to disregard the emotional outburst of a murder victim’s mother while she was testifying on the stand. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). We find that no prejudice has been demonstrated.

The second point for reversal is that the trial court erred in failing to suppress the victim’s in-court identification of the appellant. This point was raised in a pretrial motion in which the appellant sought to prevent the victim from identifying him in court based upon the lineup identification procedure held on March 10,1987. Counsel failed to obtain a ruling by the court on this motion. It is the duty of the appellant to obtain a ruling on his motions. Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987). The appellant argues that he was entitled to counsel at the lineup proceedings, despite the fact that formal charges against him had not been filed at the time. In McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988), we held that the Sixth Amendment right to counsel had not attached when the accused was required to participate in the lineup prior to the time charges had been filed against him. See also Kirby v. Illinois, 406 U.S. 682 (1972), and Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988).

The issue of whether to declare a mistrial is a matter which was no doubt seriously considered by the trial court and refused. We cannot find from the record that there was an abuse of discretion by the judge. Even if we were to reach the second issue, the circumstances of this case do not require reversal for allowing the in-court identification. The judgment is therefore affirmed.


author: Robert H. Dudley, Justice. Jack Holt, Jr., Chief Justice,

text:
    Barry L. JOHNSON v. STATE of Arkansas
    CR 88-182
    769 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered May 1, 1989

      Darrell F. Brown & Associates, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant filed a petition for a writ of habeas corpus alleging that he was convicted and sentenced in municipal court and later convicted and sentenced in circuit court on the same facts. The circuit court declined to issue the writ. We affirm.

The issue on appeal is whether the petitioner established that he was being held without lawful authority. Ark. Code Ann. § 16-112-103(a) (1987). One is held without lawful authority when it is shown that: (1) The commitment is invalid on its face; or (2) the court lacked jurisdiction. George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985). Neither of these conditions was met in this case.

(1) Commitment Invalid on Its Face. Appellant makes no assertion that the commitment was invalid on its face.

(2) Court Lacked Jurisdiction. At the time of the second conviction, the one in circuit court, the trial court had personal jurisdiction over the appellant and also had jurisdiction over the subject matter, and had authority to render the particular judgment. Thus, the trial court had jurisdiction and habeas corpus will not issue. See Goodman v. State, 221 Ark. 308, 254 S.W.2d 63 (1952).

Affirmed.

Holt, C.J., and Purtle, J., concur.

Jack Holt, Jr., Chief Justice,

concurring. I concur, but would decide this habeas corpus case on the basis of waiver as discussed in United States v. Broce,_U.S._, 109 S.Ct. 757 (1989). In that case the Supreme Court held that a defendant must raise a double jeopardy argument at the time of the alleged second conviction or else the issue is waived and, therefore, cannot be raised in a subsequent habeas corpus proceeding. I would overrule any of our cases with dictum to the contrary.

Purtle, J., joins in this concurrence.