author: Steele Hays, Justice. John I. Purtle,. Justice,

text:
    Edwin HOGGARD v. STATE of Arkansas
    CR 82-25
    640 S.W.2d 102
    Supreme Court of Arkansas
    Opinion delivered October 4, 1982
    [Rehearing denied November 8, 1982.]

      Ann Donovan and Witt & Donovan, by: Ann Donovan, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Edwin Hoggard appeals his conviction of rape by engaging in deviate sexual activity with a six-year-old boy. The state’s case was based on the testimony of the boy that during a number of visits to appellant’s apartment he had been shown pictures of homosexual acts between young men and boys with the suggestion that he and the appellant engage in similar acts. The child said he was fondled and on two occasions appellant put the child’s penis in his mouth.

These charges were reported to the police by the boy’s mother, and a search warrant was issued, producing an abundance of homosexual pornography, primarily of adolescent boys. One of the two counts was dismissed and the jury convicted appellant on the remaining count, resulting in a sentence of ten years and a fine of $7,500.

Appellant raises numerous points for reversal, but we affirm the trial court.

I.

Appellant attacks the search warrant from several standpoints: first, that Arkansas’ obscenity statute, Ark. Stat. Ann. § 41-3565 (2) (Repl. 1977), making possession of obscene material a criminal offense, is unconstitutional. He asserts mere possession of such materials is protected by the First Amendment and cannot be made a criminal offense. The simple answer is that appellant is not charged with a violation of the statute on obscenity and, hence, he has no standing to attack the constitutionality of the statute. Swaim v. State, 184 Ark. 1107, 44 S.W.2d 1098 (1933).

Second, he challenges the nighttime search. A.R.Cr.P. 13.2 (c) provides that search warrants shall be executed between 6:00 a.m. and 8:00 p.m. unless the issuing judicial officer finds reasonable cause to believe the objects to be seized are “in danger of imminent removal.” This warrant was executed at 9:00 p.m. upon such a finding and we think the affidavit provided reasonable cause to believe the material was in danger of imminent removal. Appellant cites State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1981), where we affirmed a trial court’s suppression of evidence seized in a nighttime search. But the cases are distinguishable. There, no facts were given the issuing magistrate supporting the need for a nighttime search; the arresting officers simply stated that reasonable cause existed for an immediate search. Here, the affidavit stated that appellant was expected to leave the following morning for Conway and that he had said he sometimes took the materials, or part of them, to Conway and Little Rock. On that basis the circuit judge issuing the warrant found sufficient authority under Rule 13.2 (c) (ii), A.R.Cr.P., and we cannot say his finding was clearly erroneous.

Appellant challenges the search warrant on the ground that the affiant did not appear before the issuing judicial officer as required, he argues, by Rule 13.1 (c), A.R.Cr.P. We disagree. Rule 13.1 (c) does not require that the judicial officer interview witnesses, simply that he “may” examine them.

The argument that the affidavit does not establish the reliability of the witness under the two-fold test of Aguilar v. Texas, 378 U.S. 108 (1964), must also fail. There the Supreme Court rejected a search warrant which stated only that “affiants have received reliable information from a credible person and do believe that heroin [and other drugs] are being kept at the above premises for purposes of sale____” In contrast, this affidavit goes into detail in establishing the reliability of the witnesses and the basis of their knowledge. It reveals the identity of the informants, explains their association with the appellant, states when and where the contacts occurred, and gives specific details about the materials said to be kept on the premises and their location in appellant’s apartment and in his pick-up truck. The affidavit is more like one upheld in U.S. v. Ventresca, 380 U.S. 102 (1965) than the one struck down in Aguilar. We find it to be sufficient, when viewed with common sense.

II.

Appellant charges error in the refusal to order a discovery deposition of the young victim. The trial court did allow an interview with the child and his mother, with the prosecuting attorney present, and granted appellant’s motion for psychiatric examinations into the child’s competency. Appellant concedes our A.R.Cr.P. Rule 17.4 makes it discretionary with the trial court, but he insists that due process entitled him to take the discovery of the prosecution’s witnesses. Appellant cites only dictum from Wardius v. Oregon, 412 U.S. 470 (1973). But the fallacy is the Wardius court was not dealing with the issue of whether the Due Process Clause gives an accused a right of discovery, but whether an Oregon statute giving the prosecution the right of discovery from the defendant’s alibi witnesses was constitutional. The test was said to be whether Oregon law gave an accused reciprocal rights of discovery from prosecution witnesses and, finding such rights to be lacking, the Oregon statute was struck down. Obviously, that is not the issue here. The Wardius court made it clear it was not suggesting the Due Process Clause of its own force required Oregon to adopt discovery procedures in criminal cases, citing U.S. v. Augenblick, 393 U.S. 348 (1969) and Cicenia v. Lagay, 357 U.S. 504 (1958), rather it was holding that where a state imposes discovery against a defendant, equivalent rights must be given to a defendant.

We do not imply that there are never instances where due process may entitle a defendant to discovery rights, but we are unwilling to hold that due process invariably requires that an accused have the right to take the discovery deposition of the state’s witnesses, including the victim. We prefer to leave the decision, as our Rule 17 A.R.Cr.P. provides, to the trial judges to be exercised on a case-by-case basis, subject to a limited review on appeal. Here, the trial judge gave the appellant the right to interview the child and his mother and granted broad permission to have the child examined as to testimonial capacity. We cannot say he should have done more.

III.

During the interview session defense counsel asked the mother whom she had dated, which prompted the prosecuting attorney to instruct her not to answer. Appellant argues a violation of Rule 19.1 A.R.Cr.P., which provides that neither side will instruct persons, other than the defendant, to refrain from discussing a case with opposing counsel.

Whether Rule 19.1 was breached is debatable; however, the prosecutor later withdrew his objection and told the witness she could answer if she wanted. Presumably she did not, as the trial court later denied a motion to order her to answer, finding the question improper. Appellant contends he was prejudiced, because his theory of the accusations against him was that they were a figment of the child’s fantasies, induced, perhaps, by a movie he was thought to have seen. However, we cannot say this was reversible error. Standing alone, the question is irrelevant, and without some clearer explanation of how this lead could only have been pursued by knowing whom the witness had dated, we can find no abuse of discretion.

IV.

Next it is argued that the boy was not competent to testify. He was five years old when his contacts with the appellant began. Some of the alleged acts occurred after he became six. He was six and a half when the case was tried. Appellant concedes that some six year olds might be competent but he urges that this boy was unable to distinguish between fact and fantasy.

This court has consistently said no precise age of testimonial competency in children exists, and it is primarily for the trial court to determine whether a child has the ability to observe, remember and relate the truth of the matter being litigated and has a moral awareness of the duty to tell the truth. Harris v. State, 238 Ark. 780, 384 S.W.2d 477 (1964); Batchelor v. State, 217 Ark. 340, 230 S.W.2d 23 (1950); Payne v. State, 177 Ark. 413, 6 S.W.2d 832 (1926); Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949). The issue rests within the trial court’s sound discretion. Guthrie v. State, 188 Ark. 1081, 70 S.W.2d 39 (1934), Batchelor v. State, supra, and we will not reverse on appeal in the absence of manifest abuse, Yother v. State, 167 Ark. 492, 268 S.W. 861 (1925). On appeal, the error of the trial court in accepting or rejecting the testimony must be clear. Hudson v. State, 207 Ark. 18, 179 S.W.2d 165 (1944). Here, the trial court went into the issue of competency in depth, conducting a hearing with experts from both sides who had examined and tested the child with evident thoroughness. Two experts testified that he was above average in intelligence, able to receive information accurately, retain it, and capable of accurately reporting events which happened to him. Granted, there are contradictions in the child’s testimony, as well as some odd remarks about being chased by panthers and men with guns. But these aspects are not sufficient to reverse the trial court’s ruling because, unlike the testimony in Harris v. State, supra, on the essential elements of the case the child’s testimony was generally responsive and consistent. Though unable to articulate what it meant to tell a lie, he knew what it meant to tell the truth and understood he was to do so. We will not attempt to detail his testimony; we are persuaded from a thorough reading of it that the trial court ruled correctly.

V.

The state asked the mother on redirect if she had asked her son whether he had been shown any pornographic pictures. Defense counsel objected to the question as leading and moved for a mistrial, which the trial court judge denied with the comment that the question was not answered and no damage occurred. If any prejudice occurred, which is doubtful, it was not so great that we can say the trial could not properly continue. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1976).

VI.

Over appellant’s objection the state was permitted to introduce a pamphlet entitled “Boy Scout Sex Manual” containing a number of photographs of boys engaged in sexual acts. Appellant contends the prejudicial effect of the exhibit greatly outweighed any probative value and it should have been excluded under Rules 608 and 403, Uniform Rules of Evidence. We readily agree the material was prejudicial, it could hardly be otherwise. But the argument that its probative value was lacking fades under scrutiny. This pornography and the offense being tried had a clear correlation: the pornography depicted deviate sexual acts by young males and the crime charged was deviate sexual acts of a forty-two-year-old man and a six-year-old boy. More importantly, the pornography was used as the instrument by which the crime itself was solicited — the child was encouraged to look at the pictures and then encouraged to engage in it. The value of the evidence as proof of the crime is obvious.

VII.

Appellant’s next contention is that a defense motion for a directed verdict should have been granted because the statute as written does not include the acts described by the victim. The gist of the argument is, assuming the truth of the child’s testimony, only the body of the accused was penetrated, i.e. the mouth of the appellant, and not the body of the victim. The argument is a throw-back to the definition of rape prior to the adoption of Ark. Stat. Ann. § 41-1803 (Repl. 1977), when the offense applied only to the forcible penetration of a female by a male. But § 41 -1803 broadens the definition to eliminate the gender-based element of rape and to cover other deviate sexual acts, which earlier were generally classified as sodomy. A reading of § 41-1803 and the accompanying commentary makes such intent plain — “Deviate sexual activity” is defined as “any act of sexual gratification involving: a) the penetration, however slight, of the anus or mouth of one person by the penis of another person.”

On appeal, appellant has amplified the grounds for his motion to include matters not presented to the trial court and consequently not subject to our review.

VIII.

Finally, appellant submits there was a comment on the evidence. We are not convinced. In closing argument the prosecuting attorney told the jury the date on the information was not an element of the offense. Defense counsel objected that this was an argument on the law and the jury had not been so instructed. The prosecutor answered that the defense could also argue the law. The trial judge responded by saying, “Well, that’s right. There’s been no instruction sought on that and none offered. You may proceed with your argument, but do not talk to the jury about any law except what’s covered by the instructions.” Whether the trial court was agreeing with the prosecutor or the defense we cannot say, but we do not construe these words as a comment on the evidence in any sense; we must reject the claim of error.

The judgment is affirmed.

Purtle, J., dissents.

John I. Purtle,. Justice,

dissenting. I respectfully dissent because I think both the affidavit and search warrant are as phony as a $3 bill. I also feel the material presented to the jury was inflammatory and that its prejudicial effect drastically outweighed any relevant probative value that it may possibly have contained.

The affidavit for the search warrant, made by a deputy prosecuting attorney, stated that he was contacted by officer Hanna of the Fayetteville Police Department who gave him information concerning an alleged rape and/or carnal knowledge incident. The affidavit further stated that the alleged victim’s mother stated certain things which her six year old son had told her. The six year old child, in my estimation from a review of the transcript, did not understand the meaning of an oath, and allegedly stated that appellant had taken “nude” pictures of him which he kept in various places around the premises. The child also stated that there were slides and magazines “depicting young boys in a nude state, some engaging in homosexual acts, including scenes with Hoggard.” This is rather mature language for a six year old who could not understand most of the questions and who stated he saw pink panthers running through his house. He allegedly said that the items, which were not described specifically, were in the appellant’s room nearly every time he had visited there. It had been from two to six weeks since the alleged incident occurred. The informants allegedly stated that appellant had mentioned he sometimes carried this material to Conway or Little Rock. Appellant had telephoned on the date of the affidavit to ask about seeing the boy. The alleged victim had told his mother, some ten days before, about the activities in which he allegedly engaged. The basis for issuing the nighttime search warrant, according to the affidavit, was that “it is feared” appellant “may leave” with some or all of the described evidence and “may be packing” it up tonight. There is not one factual statement in the affidavit to back up the nighttime search requirements as set out in our Rules of Criminal Procedure. The alleged findings were written out before any appearance was made before the issuing judge. The affiant was not sworn by the magistrate. In fact, all the magistrate did was sign a preprinted form on which the deputy prosecutor had written out in longhand certain unsupported allegations.

Rule 13.6 provides for the issuance and execution of search warrants for illegally possessing pictures and literature. However, private possession of obscene material is not illegal. According to the United States Supreme Court, an individual may possess material as obscene as he desires, so long as he does not display it to others or attempt some illegal use. United States v. Thirty-seven Photographs, 402 U.S. 363 (1971). The affidavit did not state how long the young boy had known the appellant but it did state that on almost every visit the boy made to appellant’s room the material was present. There simply is nothing to support the allegation that the material was likely to be destroyed or moved before the next day. In fact, the indications on the face of this affidavit are that he would continue to hold this material in his possession. The rules state that only such materials as may be necessary “for evidentiary” use in a proceeding are to be sought. Ninety-nine percent of this material was not even introduced into evidence. The other material had been presented to the judge and had possibly been displayed before the jury even though it was not introduced. The one book which was introduced was used by the state in the closing arguments. It depicted young males in acts of masturbation and other deviate sexual activities with which appellant was not charged. The only allegation in the information in this case is that the appellant performed fellatio on this child. It is apparent to me that this material was introduced merely to inflame the passions of the j ury. The only proper material which should have been before the jury would have been materials depicting the activities with which appellant was charged.

We are not here dealing with the guilt or innocence of the appellant. That is not the issue before this court. Although he might have been found guilty in a properly conducted trial, he should not be found guilty in a trial which violates his statutory and constitutional rights. I have no objection to the punishment and consider it appropriate upon one having been given a fair trial and properly convicted by a jury. My objections in this case primarily relate to the affidavit and search warrant, which I find woefully inadequate, and to the competency of the six year old boy to testify. The principles of the Constitution hold us to high standards in allowing a search of an individual’s residence. These standards simply were not met in this case. When the Constitution can be sidestepped in such a blatant manner as this, I think we must all fear for the sanctity of our homes. And as for the child’s testimony, I cannot in good conscience find that a youngster of such tender age who admitted numerous fantasies to the court and who could not appreciate the meaning of an oath should be the controlling factor in this case. It seems to me that the prosecution could have made a good case against the appellant without resorting to the tactics they used here. For these reasons, I must respectfully dissent.

      Unlike Arkansas, Oregon did not require the State to reveal the names and addresses of witnesses, nor even require a bill of particulars.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Bruce SHERROD v. STATE of Arkansas
    CR 82-62
    639 S.W.2d 511
    Supreme Court of Arkansas
    Opinion delivered October 4, 1982
    Appellant, pro se.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

On May 24, 1982, we granted the appellant Bruce Sherrod permission to proceed pro se on appeal. Sherrod was notified that the appellant’s brief was due July 3. When no brief was filed by that date, appellant was twice notified of the need to file a motion for permission to file a belated brief. He did not file the motion. On September 9, the State filed the motion to dismiss appeal which is now before us. Appellant responded with a motion for extension of time to file a belated brief. We find no good cause in appellant’s motion for his delay.

The motion to dismiss appeal is granted. Appellant has been afforded every opportunity to file his brief. His failure to file a brief and his inexcusable delay in filing a motion to file a belated brief must be considered a waiver of his right to appeal.

Motion granted.


text:
    John GREEN v. STATE of Arkansas
    CR 82-104
    639 S.W.2d 512
    Supreme Court of Arkansas
    Opinion delivered October 4, 1982
    Appellant, pro se.

    No response by State.
   Per Curiam.

On May 12, 1982, we appointed Gary Burbank to represent John Green on appeal. Green then filed the motion which is now before us to proceed pro se and for permission to file a handwritten brief on appeal.

It has been the practice of this Court to require all appellants, including those acting pro se, to comply with the rules of the Supreme Court and Court of Appeals. Green asserts in his motion that he cannot comply with Rule 8 which provides that all briefs on direct appeal must be printed or typed. Supreme Court Rule 8, Ark. Stat. Ann. Vol. 3A (Supp. 1981). He states that he does not have access to a typewriter where he is incarcerated.

As an indigent Green has the right to appointment of counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L.Ed.2d 811, reh. den., 373 U.S. 905, 83 S. Ct. 1288, 10 L.Ed.2d 200 (1963). We have afforded him that right. In an affidavit filed with his motion, Green avers that he is aware of this right and its advantages but nevertheless wishes to waive the services of an attorney. We would, of course, grant Green’s motion to proceed pro se but he has stated specifically in his motion that he cannot represent himself unless this Court waives its procedural rules in his case which require at least typewritten briefs. In a per curiam opinion dated March 2, 1981, we adopted a change in our rules to permit typewritten briefs in lieu of printed briefs just so indigents would not be denied a right of review.

All state and federal courts have adopted rules for the administration of justice. The rules of an appellate court are intended to expedite the court’s consideration of matters presented to it. The prompt and orderly disposition of cases depends in part on standards which control the content, length and form of the appeal brief. A brief on direct appeal is unlike a petition for postconviction relief or other motion which we accept in handwritten form if legible. The appellant’s brief must contain a complete abstract of the record as well as a statement of the case, points for reversal and argument. Copies of the brief must be filed with the Court since the entire Court must read the brief. Deciphering a handwritten brief is time-consuming and impedes the appellate process. If we permit this litigant to file a handwritten brief then we might as well void our rule which is a minimum inconvenience to any party. It must be emphasized that we are not denying Green’s right to appeal, only the request that he be allowed to do it his way. He has been offered competent counsel to prepare and submit his brief, an offer he has refused.

A criminal appellant is presented the choice of proceeding with or without an attorney. For those who want an attorney but cannot afford one, counsel is appointed. With the choice of proceeding pro se goes the responsibility of being aware of and complying with procedural rules. A pro se appellant is not in a position superior to other appellants. It is no more a denial of due process for an appellate court to require pro se briefs to be typed than it is for a trial court to require pro se defendants to conduct themselves according to the rules pertaining to trial. There is no constitutional right to file a handwritten brief. If a pro se appellant cannot for some reason use or obtain the use of a typewriter, then he should consider allowing an attorney to perfect the appeal.

Since appellant has specifically stated that he cannot comply with Supreme Court Rule 8, his motion to proceed pro se is denied. Mr. Burbank will remain as appellate counsel, and the appellant’s brief will be due 40 days from the date of this opinion.

Motion denied.

Purtle, J., dissents.


text:
    Derrell L. BRINKLEY v. STATE of Arkansas
    639 S.W.2d 513
    Supreme Court of Arkansas
    Opinion delivered October 4, 1982

      Arnold, Lavender, Rochelle, Barnette & Franks, by: Jerry A. Rochelle, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant, Derrell L. Brinkley, by his attorney, has filed for a rule on the clerk.

His attorney, Jerry A. Rochelle, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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


text:
    Ex Parte Sam WEEMS
    639 S.W.2d 514
    Supreme Court of Arkansas
    Opinion delivered October 4, 1982

      Givens & Buzbee, by: Art Givens, for petitioner.
    No response by State Board of Law Examiners.
   Per Curiam.

In 1974, petitioner Sam A. Weems was tried and found guilty of serious violations of the Code of Professional Conduct. The trial court entered judgment of permanent disbarment. On appeal we affirmed the judgment of disbarment but modified the term to three years of mandatory disbarment after which time petitioner could apply to the State Board of Law Examiners for a determination of his fitness to again practice law. Weems v. The Supreme Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975).

The three year period of mandatory disbarment has passed and petitioner now seeks to circumvent making application to the Board of Law Examiners by asking this Court to admit him directly.

Our original opinion and supplemental opinion are unequivocal in holding that any readmittance to the practice of law must be subject to a determination of fitness to practice by the State Board of Law Examiners. Weems v. State Board, supra. Thus, the point was previously in dispute and has been finally settled. It is res judicata. The petition is denied.

Holt and Hickman, JJ., not participating.


author: Richard B. Adkisson, Chief Justice.

text:
    Glen COX v. Phyllis FRENCH, County Clerk et al; Ken NOCE, Intervenor
    82-90
    640 S.W.2d 786
    Supreme Court of Arkansas
    Opinion delivered October 11, 1982
    [Rehearing denied November 15, 1982.]

      Wilson, Grider ir Castleman, by: Murrey L. Grider, for appellant.

      Smith ¿r Morphew, for appellees.

      Dudley, J., not participating.

   Richard B. Adkisson, Chief Justice.

The Quorum Court of Randolph County passed Ordinance No. 88 on September 3, 1981. The ordinance was duly published one week later. Purporting to act pursuant to Amendment 7 of the Arkansas Constitution, appellee, Ken Noce, filed a referendum petition on the ordinance in the county clerk’s office on December 1, 1981. This appeal is from a decree of the Randolph County Chancery Court holding the petition was properly filed even though filed with the county clerk later than 60 days after the ordinance was passed and published.

Ark. Stat. Ann. § 17-4011.6 (Repl. 1980) sets the time for filing a referendum petition:

(b) Referendum Petitions. All petitions for referendum on county measures must be filed with the County Clerk within sixty (60) calendar days after passage and publication of the measure sought to be repealed.

Appellees argue that this statute is unconstitutional because Amendment 7, which states that the time for filing is from 30 to 90 days, is self-executing. We disagree. This statute was passed as permissible enabling legislation for paragraph three of the Local Petitions section of Amendment 7 of the Arkansas Constitution, which provides:

General laws shall be enacted providing for the exercise of the initiative and referendum as to counties. ... In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty days nor more than ninety days before the election at which it is to be voted upon; for a referendum petition at not less than thirty days nor more than ninety days after the passage of such measure by a municipal council; . . .

This section clearly anticipates that general laws may be enacted fixing a time for filing a referendum petition at a specific time between 30 and 90 days. By enacting Ark. Stat. Ann. § 17-4011.6, the legislature fixed the time at 60 days which was a lawful exercise of its power.

Appellees also argue that they did not have to comply with Ark. Stat. Ann. § 17-4011.6 because it was repealed by Ark. Stat. Ann. § 17-4003.1 (Supp. 1981):

Any ordinance enacted by the governing body of any county, city or town in the State may be referred to a vote of the electors of such county, city or town for approval or rejection in the manner and procedure prescribed in Amendment No. 7 to the Arkansas Constitution and laws enacted pursuant thereto for exercising the local initiative and referendum, and the manner and procedure prescribed therein shall be the exclusive method of exercising the initiative and referendum regarding such local measures. (Emphasis supplied)

This statute did not repeal Ark. Stat. Ann. § 17-4011.6 (b), but specifically preserved all previously enacted enabling legislation, including Ark. Stat. Ann. § 17-4011.6.

Since the referendum petition was not timely filed, the election held pursuant to the order of the trial court was invalid.

Reversed.

Dudley, J., not participating.


text:
    Ernest L. WALKER v. STATE of Arkansas
    CR 81-73
    639 S.W.2d 742
    Supreme Court of Arkansas
    Opinion delivered October 11, 1982

      Anthony W. Bartels, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

On March 27, 1980, Carolyn Winston, a resident of Joiner, Arkansas, was found dead in her car with lacerations on her face and a bullet hole in her chest. Appellant, Ernest L. Walker, was subsequently charged with capital murder. After a trial by jury, appellant was convicted as charged and sentenced to life imprisonment without parole. On appeal appellant questions the sufficiency of the evidence to corroborate the testimony of the accomplice, Otis Hendrix. We affirm.

The events occurring before the murder are undisputed. Appellant, who lived in Chicago, decided to visit some of his Arkansas relatives, including the Selvy family who lived near Joiner. Hendrix, a Chicago relative, accompanied him to Arkansas. They left Chicago on March 21, 1980, in appellant’s red and white 1977 Oldsmobile. They spent several days visiting appellant’s mother in Parkin, Arkansas, and arrived in Joiner on Tuesday afternoon, March 25.

Once in Joiner, they went to the Selvy house which was located on the Bowden plantation. The victim lived in the Bowden residence, which was situated north of the Selvy house. Barbara Williams lived in another Bowden plantation house which was located between the Selvy and Bowden houses.

Appellant and Hendrix spent Wednesday visiting relatives and driving around Joiner. They also went to the First National Bank in Joiner so appellant could get a hundred dollar bill changed. On Thursday they drank beer, watched television, and did more visiting.

Hendrix, an undisputed accomplice to the murder, testified as to the events which transpired Thursday night: He and appellant were at Thomas Selvy’s house. About 9:00 p.m. appellant told him to “come on” and they left the Selvy house, walking in the direction of the Bowden residence. On the way, appellant gave Hendrix a pair of white rubber gloves and kept a green pair for himself. Upon arriving at the Bowden residence, appellant knocked on the door which was answered by the victim. He told her they were having car trouble and she allowed appellant and Hendrix to come inside to use the phone. When appellant told her no one answered the number he had called, she offered to drive them to their car. After they had ridden several miles appellánt asked her to pull over. She refused and at that time appellant pulled out a .38 caliber pistol and announced that this was a “stick up.” She stopped the car; a scuffle ensued; appellant pulled her out of the car and beat her repeatedly with a .38 caliber pistol. In the course of the beating the handle of the pistol broke. Appellant then shot her one time and, with the help of Hendrix, put her in the back seat of the car on the floor. Appellant turned the car around at a nearby railroad track, drove past the Bowden house, and parked beside some tractors. During this time, Hendrix discovered the victim had a handgun in her pocket which he gave to appellant. Appellant and Hendrix then walked back to appellant’s car, which had been parked at Barbara Williams’s house. When they started it up they realized it was stuck in the mud, so appellant walked up to the Williams house and spoke for a minute with Mrs. Williams. Before she could help, members of the Selvy family came over and got the car out of the mud. On the way back to Chicago appellant told Hendrix that he should “say nothing” and get rid of his clothes.

Hendrix testified that while at his girlfriend’s house in Chicago and while enroute to Arkansas, he and appellant had discussed “doing a robbery.” Once in Joiner, Hendrix heard appellant ask several cousins if they knew of any “rich folks.” Hendrix stated that he and appellant discussed robbing the people who lived in the Bowden residence. Hendrix also stated that appellant had a .25 caliber pistol in addition to the .38.

Ark. Stat. Ann. § 43-2116 (Repl. 1977) requires that Hendrix’s testimony be corroborated since it is undisputed that he was an accomplice to the murder:

Testimony of accomplice. — A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.

Appellant argues that the requirements of this statute have not been met; therefore, the trial court erred in refusing to direct a verdict of acquittal for appellant. After reviewing the evidence, we conclude that appellant’s contention is without merit.

The following testimony corroborates Hendrix’s testimony and tends to connect appellant to the murder: Linda Wilburn, the twin sister of Hendrix’s girlfriend in Chicago, testified that before appellant and Hendrix left Chicago she heard them discussing a white woman who lived in a little town in Arkansas with a safe in her house. Thomas Selvy testified that appellant asked him if the people who lived in the “big house” were wealthy and if they had dogs. He also stated that appellant told him that he was going to “hit something” before he left Joiner. Selvy also testified that he saw what he thought was a .32 caliber pistol with a brown handle in appellant’s car but appellant told him it was a .38.

Selvy testified that on the night of the murder he saw the trunk light come on in appellant’s car, which was parked near Barbara Williams’s residence. He then saw appellant and Hendrix walk in the direction of the Bowden house. He stated that they returned on foot between 9:00 p.m. and 10:00 p.m. and that some of his family helped get appellant’s car out of the mud. He also testified that appellant acted nervous and had a dark stain on his right arm.

L. F. Etter, a Joiner resident, testified that he heard a single shot between 9:30 p.m. and 10:00 p.m. Thursday, March 27. He stated that after hearing the shot he looked out his window and saw car lights on the shoulder of Highway 61. A few seconds later he saw the car start up, pull up on top of the railroad crossing, back down, and go north. Deputy sheriff Higgins testified that on April 1,1980, Etter took him to Highway 61 to the approximate location of the car which was where he found two live .38 caliber shells and a brown piece of a broken revolver. Officer J. D. Brewer testified that he found a pack of Benson and Hedges cigarettes and a pair of prescription glasses in the same area. The glasses matched those that the victim was wearing in her driver’s license picture.

Hendrix’s girlfriend, Brenda Wilburn, testified that two or three days after Hendrix returned to Chicago she heard appellant tell Hendrix to burn his clothing which could be evidence. She saw Hendrix carry some clothes to the incinerator. She also stated that she saw some green gloves which appellant and Hendrix brought back to Chicago. Chicago police officer James Hunt testified that he found a .25 shell casing and a pair of greenish blue plastic surgical gloves in a search of appellant’s car.

We have consistently held that corroborating evidence need not be sufficient in and of itself to sustain a conviction, but need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime. King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973). The above testimony clearly connects appellant to the murder; therefore, the trial court did not err in submitting the question of the sufficiency of the corroboration to the jury.

Appellant also argues that the elements of robbery or attempted robbery were not proven other than by the testimony of the accomplice and, therefore, the trial court erred in not submitting the case to the jury on a lesser homicide offense. We disagree. Hendrix’s testimony as to appellant’s intent to commit a robbery was sufficiently corroborated by the testimony of Thomas Selvy and Linda Wilburn, as set out above.

Lastly, appellant argues that the trial court erred in admitting into evidence certain photographs depicting the victim’s wounds, alleging they had no probative value and were inflammatory. Our cases hold that a trial court’s decision on the admissibility of photographs will be reversed only if there is a clear abuse of discretion. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979); Lee v. State, 229 Ark. 354, 315 S.W.2d 916 (1958). Here, the photographs at issue were introduced during the testimony of the medical examiner and were used to aid the jury in understanding the testimony. Under these circumstances we cannot say the trial court abused its discretion in admitting the photographs.

We have examined the record for additional errors not argued by defense counsel, who was appointed for purposes of this appeal, but finding none prejudicial, affirm the conviction and punishment.

Affirmed.


author: Richard B. Adkisson, Chief Justice. Steele Hays, Justice, John I. Purtle, Justice,

text:
    STATE of Arkansas v. Jimmy Clark LEE
    CR 82-88
    639 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered October 11, 1982

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellant.

      Beth Gladden Coulson and L. Gene Worsham, for appellee.
   Richard B. Adkisson, Chief Justice.

Prior to trial the Jefferson County Circuit Court dismissed a charge of rape against appellee, Jimmy Clark Lee. Appellant, the State of Arkansas, brings this appeal pursuant to Ark. Stat. Ann. § 43-2720 — 2720.1 (Repl. 1977).

The first issue argued on appeal is whether the trial court erred in its interpretation of Ark. Stat. Ann. § 43-2036 (Supp. 1981) which provides that videotaped depositions of minor victims of sexual offenses shall be admitted in evidence in lieu of testimony:

43-2036. Videotaped deposition of alleged victim under seventeen years of age in sexual offense prosecution — Procedure — Use. — In any prosecution for a sexual offense or criminal attempt to commit a sexual offense against a minor, upon motion of the prosecuting attorney and after notice to the opposing counsel, the court may, for a good cause shown, order the taking of a videotaped deposition of any alleged victim under the age of seventeen (17) years. The videotaped deposition shall be taken before the judge in chambers in the presence of the prosecuting attorney, the defendant and his attorneys. Examination and cross-examination of the alleged victim shall proceed at the taking of the videotaped deposition in the same manner as permitted at trial under the provisions of the Arkansas Uniform Rules of Evidence. Any videotaped deposition taken under the provisions of this Act shall be viewed and heard at the trial and entered into the record in lieu of the direct testimony of the alleged victim.

The deposition of the eight-year-old victim was videotaped pursuant to this statute; however, at the videotaping she refused to testify about the alleged crime other than to state that appellee had done something with her that was unusual or odd. The court excused her for a short period of time subject to recall. On recall she testified: that the first time her dad ever did anything her brother was around; that her brother was playing outside and she and her dad were inside; and that she and her dad were watching t.v. in his bedroom. She then became silent and refused to answer any more questions or give any further testimony.

Several days after the videotaping appellee filed a motion to dismiss the charge because the victim’s deposition failed to state any grounds for the charge. The trial court granted appellee’s motion, holding that under Ark. Stat. Ann. § 43-2036 (Supp. 1981) the victim’s videotaped depositions must be viewed and heard at trial and entered into the record in lieu of the direct testimony of the alleged victim. We agree with the trial court’s interpretation of this statute. The mandatory language of the statute is clear and unambiguous. We have repeatedly held that when the wording of an enactment is self evident, we need not look elsewhere to determine meaning and intent. Casey v. Scott Paper Co., 272 Ark. 312, 613 S.W.2d 821 (1981); Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586 (1921). Where a statute is plain and unambiguous, there is no room left for construction; and neither the exigencies of a case nor a resort to extrinsic facts will be permitted to alter the meaning of the language used in the statute. Cunningham v. Keeshan, 110 Ark. 99, 161 S.W.2d 170 (1913).

The State next argues that the trial court prematurely judged the State’s evidence by dismissing the charge. We agree. The State indicated to the court that it would produce two witnesses other than the victim. Therefore, it was error for the trial court to dismiss the charge. The case is reversed on this point and remanded.

Reversed and remanded.

Hickman, Purtle and Hays, JJ., dissent in part.

Steele Hays, Justice,

concurring in part, dissenting in part. I respectfully dissent from that part of the opinion which interprets Ark. Stat. Ann. § 43-2036 (Supp. 1981) as restricting the state in the prosecution of sexual offenses against children. The obvious objective of the statute is to make the prosecution of these cases less onerous to the youthful victims and their families by shielding the child from the ordeal of courtroom testimony. But the interpretation given the statute by the trial court and the majority will effectively nullify the statute in many cases, as the prosecution will seldom risk taking a deposition if it means the child cannot be called as a witness in the event he or she experiences stage-fright during the deposition. This construction which gives the accused an unexpected windfall, could not have been the intention of the legislature as I see it.

A common sense interpretation of the statute suggests that it is intended to be an available alternative for the young witness, not an election which precludes the right to testify at trial. This interpretation works no real hardship on the accused, he simply has to face the prosecuting witness in trial rather than in deposition.

Hickman, J., joins this dissent.

John I. Purtle, Justice,

dissenting in part. I concur in the majority opinion which holds that videotaped depositions of minor victims shall be admitted in evidence in lieu of direct testimony. The state has the option of taking a videotaped deposition or presenting the witness before the jury. However, I disagree with the majority opinion which reverses the trial court on dismissing the charges. In this case the prosecuting attorney candidly admitted he had no evidence which could be the basis for a conviction of the appellant. This was not a matter which was decided in haste. The trial court gave the parties several weeks between the request of the motion to dismiss and finally acting upon it. The state was given every possible opportunity to discover witnesses who might enable them to make a case against the appellant. None were found. The trial court used common sense and intelligence in dismissing the charge after learning there was no possibility of a conviction.

The only purpose to be served by allowing this videotaped deposition to be presented at the trial of the case on the other count is solely and entirely for the purpose of prejudicing the jury and I will vote to reverse the conviction if the videotape is shown at the trial on the other count. There are limits beyond which the state should not be allowed to go and this is one of them. This videotaped deposition cannot be presented to the jury in good faith. I would affirm the trial court in its entirety.


author: George Rose Smith, Justice.

text:
    Clarence MERRILL v. STATE of Arkansas
    CR 82-95
    640 S.W.2d 787
    Supreme Court of Arkansas
    Opinion delivered October 11, 1982
    [Rehearing denied November 15, 1982.]

      Jeff Duty, for appellant.

      Steve Clark, Atty. Gen., by; Theodore Holder, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Earlier this year Merrill pleaded guilty to a felony charge, the sale of marihuana, and was sentenced to 7 years’ imprisonment. By a petition under Criminal Procedure Rule 37 he seeks to have the sentence reduced, on the ground that a 1979 amendment to the Drug Abuse Control Act had the effect of reducing the offense to a misdemeanor, with a maximum punishment of a $1,000 fine. This appeal from the trial court’s denial of the petition comes to us under Rule 29 (1) (e).

For reversal it is argued that the 1979 amendment impliedly repealed that section of a different statute, the Controlled Substances Act, making the illegal sale of drugs a felony, and alternatively that if there was no implied repeal there is a denial of equal protection, because the same conduct may be punished either as a felony or as a misdemeanor. We discuss the two arguments together, because their common fallacy stems from a failure to recognize the existence of two separate statutory schemes, one governing the illegal sale of drugs and the other their legal sale.

The Controlled Substances Act is Chapter 26 of Title 82 of the Arkansas Statutes. It defines the various controlled drugs, Section 82-2605, and makes their illegal manufacture, delivery, or possession a felony. § 82-2617. The Drug Abuse Control Act is Chapter 21 of Title 82. It governs the legal sale of drugs by requiring manufacturers and wholesalers to obtain a permit from the State Board of Health, to sell only to licensed persons such as physicians, hospitals, and pharmacies, and to keep records of all their transactions; so that the traffic in legal drugs is constantly subject to inspection and supervision.

The Drug Abuse Control Act originally had its own enumeration of what were called depressant or stimulant drugs, but by the act now relied upon by the appellant the legislature substituted for that enumeration the list of drugs scheduled in the Controlled Substances Act. Act 751 of 1979, § 3; Ark. Stat. Ann. § 82-2113 (c) (Supp. 1981). In carrying out that substitution Section 6 of Act 751 amended the penalty provision in the Drug Abuse Control Act to make it a misdemeanor for any person, firm, or corporation to sell a controlled substance (instead of a depressant or stimulant drug) without a permit. § 82-2116 (Supp. 1981).

We think it too plain for argument that the legislature, by amending the statute governing the legal sale of drugs, did not intend to repeal an unrelated section of a different statute prohibiting the illegal sale of drugs. Indeed, since there is no way to obtain a permit for the illegal sale of drugs, the inapplicability of the amendment to this case is apparent on its face. Nor is there a denial of equal protection. The legislature could reasonably find that the severe penalty appropriate to efforts to control the illegal sale of drugs to addicts is not necessary in the control of businesses and professions that sell and use drugs legally for the treatment of patients. Thus the classification is not arbitrary.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Cecelia ROLESON v. STATE of Arkansas
    CR 82-12
    640 S.W.2d 113
    Supreme Court of Arkansas
    Opinion delivered October 11, 1982
    [Rehearing denied November 8, 1982.]

      Robert E. Young of Rhine, Rhine & Young, court appointed, and Walter Davidson of Davidson, Plastiras, Horne, Hollingsworth ir Arnold, pro bono, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Cecelia Roleson was convicted of being an accomplice in the murder of Carl Lipe, which occurred around midnight, April 27, 1979, in rural Greene County, Arkansas. Cecelia Roleson and her former husband, Jerry Roleson, were convicted of the murder in a joint trial in 1980, but we reversed her conviction because of three procedural errors; we dismissed Jerry Roleson’s conviction because of lack of evidence to corroborate the testimony of still another accomplice to the murder. Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981). On retrial, the jury convicted Cecelia Roleson of first degree murder and sentenced her to life imprisonment. On appeal she raises fifteen allegations of error. We find no prejudicial error was committed and affirm her conviction.

Carl Lipe was shot and killed on a rural road about midnight April 29, 1979. There were no witnesses to the murder. Lipe’s wife, Rosa, the other accomplice to the murder, was the State’s chief witness against Cecelia Roleson in both trials.

The Lipes became acquainted with the Rolesons when they moved to a house behind the Rolesons’ grocery store in Marmaduke, Arkansas. Rosa Lipe testified that she began to confide in Cecelia, and that they became sexually intimate. She said that Cecelia wanted to set up a prostitution business and wanted the Lipes’ help because they had once been in that business. Cecelia later decided that Carl Lipe would impede the plan and wanted him killed. Several times before Carl’s murder, Cecelia gave Rosa poison to give to her husband, but Rosa said that she had only given it to him once.

On the day of the murder, a Friday, Cecelia told Rosa that she and her husband would visit the Lipes that night and said, “Tonight is the night.” The Rolesons did visit the Lipes, and Cecelia, her stepchildren and Rosa went to Paragould and ate. The children were taken home and Rosa and Cecelia drove to the Lipes’ home. When Cecelia saw that the Lipes’ automobile was not there she said, “I’ve got to make a run.” She and Rosa drove for a while and Cecelia stopped when she said that she saw a flashlight. Jerry Roleson got in the car, said he had just killed Carl Lipe and described how he had done it. The three drove to a bridge and threw out a pistol and Jerry’s tennis shoes. Cecelia took Rosa home and told her to pretend to wait up for Carl and then call the police early that morning, which Rosa did.

Two turkey hunters found Lipe’s body early the next morning. After questioning by the police, Rosa Lipe eventually agreed to cooperate and showed them the slough where the gun was thrown. A 380 Baretta was found and identified as the weapon that killed Lipe.

Bill Bushong, a Pepsi-Cola route man, testified that he had given the Baretta to Cecelia in exchange for an old car after she had repeatedly asked him to get a gun for her for protection. Bushong also testified that Cecelia indicated to him that she wanted Lipe killed becuse he was interfering with a prostitution business she hoped to start, which would involve herself, Rosa, and Jerry Roleson. Bushong said that Cecelia told him on the Wednesday after the murder that her husband had killed Lipe. Bushong also said that before the trial Cecelia had approached him, asking him to change his testimony. There was other evidence that Cecelia had been looking for a gun and was planning to become involved in prostitution. Mark Reed testified that Cecelia had asked him to perjure himself by saying that Cecelia had asked for the gun for Rosa. Both men admitted to having affairs with Cecelia Roleson.

The defense essentially maintained that either Rosa Lipe killed her husband or that someone besides the Rolesons killed him. Jerry Roleson testified that he and Cecelia did go to the Lipe home the night of the murder but that he left with Cecelia and Rosa. He said he last saw his wife and Rosa together about 9:30 p.m. when they took him home and that he went in and went to bed. He conceded that his wife had talked to him about setting up a prostitution ring, but denied that he was involved in the murder.

Cecelia Roleson denied any guilt but made some damaging admissions. She admitted that Bushong had given her the gun after she asked for it several times. But she testified she was asking for it for Rosa. She did concede, however, that Bushong took an old car belonging to her shortly after he gave her the gun, just as Bushong testified. She admitted that she had lied on three occasions to police officers when first asked about the gun. She had denied any knowledge of a gun and denied she ever asked anyone for one. She also admitted she had talked to both her husband and Bushong about a prostitution ring.

The defense emphasized evidence that Carl Lipe’s life insurance was increased approximately two weeks before the murder, from $5,000 to $16,500. There was also evidence the Lipes intended to buy the grocery store. Rosa testified that the Rolesons were having financial problems and that she and Carl offered to buy the store. The Rolesons were asking $8,000 and the Lipes gave them a down payment of $500.00.

The State’s theory was that Cecelia Roleson masterminded the murder and there was strong evidence that Cecelia was a domineering and strong-willed person. Rosa Lipe testified she was afraid of Cecelia because she had threatened the safety of her child, and because she wanted to conceal their sexual relationship.

This is essentially the evidence viewed in the light most favorable to the State, which is the view that must be taken on appeal. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). Obviously the jury resolved the issue of credibility against Cecelia Roleson and her witnesses and there is substantial and convincing evidence of her guilt.

The first argument on appeal is that Cecelia Roleson cannot be guilty as an accomplice since the charges against her husband, the principal, were dismissed. That was the common law rule. Ray v. State, 102 Ark. 594, 145 S.W.2d 881 (1912). The Arkansas law was drafted precisely to close this loophole in the law. Ark. Stat. Ann. § 41-304 (2) (Repl. 1977) reads:

In any prosecution for an offense in which the liability of the defendant is based on conduct of another person, it is no defense that:
(2) the other person has not been charged with, prosecuted for, convicted of, or has been acquitted of, any offense or has been convicted of a different offense or degree of offense, based upon the conduct in question; . . .

Roleson also argues she cannot be an accomplice since she was not present when the murder took place. That is simply not a correct statement of the law. Roleson cannot disclaim responsibility because she did not take part in each act that made up the whole crime. Andrews v. State, 262 Ark. 190, 555 S.W.2d 224 (1977). The statute does not contemplate that a person is an accomplice only if he is present at the scene of the crime. No such construction can be placed on the statute’s plain language. An accomplice is defined in Ark. Stat. Ann. § 41-303 (Repl. 1977) as:

(1) A person is an accomplice of another person in the commission of an offense, if with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(c) having a legal duty to prevent the commission of the offense fails to make a proper effort to do so.
(2) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he
(a) solicits, advises, encourages or coerces another person to engage in the conduct causing the result; or
(b) aids, agrees to aid, or attempts to aid another person in planning or engaging in the conduct causing the result; or
(c) having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.

Three arguments of error by the defense counsel may be answered together: the trial judge’s refusal to allow the defense to inform the jury that Jerry Roleson’s conviction was reversed and dismissed on appeal; his refusal to allow an instruction or any testimony or reference to that fact; and, his refusal to allow the defense to mention that Jerry Roleson was not currently charged. The judge was correct. It was irrelevant to Cecelia Roleson’s trial or sentence that Jerry Roleson was released. Indeed it would prejudge the State’s right to require Cecelia Roleson to account for her conduct. As Ark. Stat. Ann. § 41-304 (Repl. 1977) states, it is no defense that the other person has been acquitted.

It is argued that Rosa Lipe was improperly allowed to testify that Jerry Roleson told her, “. .. that was the hardest son of a bitch to kill that he had ever killed,” and “he told me that he had killed Carl.” The objection is this was hearsay, which, of course, it was. But among the many exceptions to the rule that excludes hearsay is the admissibility of a statement made by a co-conspirator. Ark. Stat. Ann. § 28-1001, Rule 801 (d) (2) (v) (Repl. 1979). See Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980).

It is argued that Bill Bushong was an accomplice to the murder and the jury should have been so instructed. He was not an accomplice. As we said in Burke v. State, 242 Ark. 368, 413 S.W.2d 646 (1967):

The test, generally applied to determine whether or not one is an accomplice, is, could the person so charged be convicted as a principal, or an accessory before the fact, or an aider and abetter upon the evidence? If a judgment of conviction could be sustained, then the person may be said to be an accomplice; but, unless a judgment of conviction could be had, he is not an accomplice.

The only implication of Bushong’s guilt comes from Bushong’s testimony that Cecelia had once told him she wanted Lipe killed. He said that he thought she was joking. There was also the inconsistent testimony of Cecelia Roleson and it is no more than a suggestion of complicity; certainly there is no substantial evidence of his guilt.

Cecelia Roleson argues that certain testimony by her former husband (they were divorced at the time of trial) violated the privilege for husband/wife confidential communications, as set forth in Ark. Stat. Ann. § 28-1001, Rule 504 (Repl. 1979). Jerry Roleson was permitted to testify that he and his former wife had had personal problems. He also testified that Cecelia once asked him at a nightclub to approach a woman about participating in a prostitution ring. The first instance did not even involve a communication since it was merely a question about Mr. Roleson’s personal knowledge of problems he and Cecelia had. The second instance was obviously not intended to be confidential because Cecelia indicated that she wanted the content to be related to the other woman and there is evidence other people were present when the statement was made. Since neither instance involved a confidential communication, the privilege of Rule 504 does not apply.

The State argues that since the Rolesons were divorced at the time of trial, any husband/wife privilege terminated at the time of the dissolution of the marriage. We do not deem it necessary at this time to decide whether divorce terminated the privilege.

The State used a former deputy sheriff’s testimony from the Rolesons’ first trial when the court ruled the witness “unavailable” under Ark. Stat. Ann. § 28-1001, Rule 804 (b). Since another deputy sheriff testified who examined the crime scene, the former deputy’s testimony was probably not necessary to the State’s case; his testimony was merely cumulative. The sheriff’s office learned five days before the trial that the witness had left the state and was in Midland, Texas. Evidently the witness and his wife had separated, a fact unknown to the sheriff’s office. According to a witness from the sheriff’s office, a strong effort was made to locate and produce the witness, but to no avail. The trial court, after hearing testimony that the State made a good faith effort to locate the witness, allowed the testimony. If any error was committed, it was harmless. See Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980).

The other eight allegations of error concern the discretionary power of the trial judge to make certain rulings and decisions. A court’s rulings on matters pertaining to the conduct of trial and the admission of evidence are within the judge’s discretion. His rulings will not be set aside absent a manifest abuse of discretion. Wright v. State, 254 Ark. 39, 491 S.W.2d 390 (1974); Petty v. State, 245 Ark. 808, 434 S.W.2d 602 (1968).

The defense sought during the trial to call a witness who would say she had overheard Rosa Lipe say, “Well, I had Carl increase his insurance.” The State had not been notified of the defense’s intention to call the witness. Cecelia Roleson had, in effect, testified to the same and we can find no prejudice resulting from the court’s discretionary ruling in this case. The trial judge found no bad faith or lack of diligence on the part of defense counsel but ruled that it was too late to offer that evidence, referring to local rules which impose on the State, as well as the defense, an obligation to timely name witnesses used before trial. On occasion we have prohibited the State from using such evidence. Nelson v. State, 274 Ark. 113, 622 S.W.2d 188 (1981).

The defense counsel attempted to cross-examine Rosa Lipe, reading from a prior statement she had made to a polygraph operator. It was, “Have you minimized your involvement with Carl Lipe’s death?” Her answer had been “ Yes. ” The State objected to this line of questioning because of a possible mention of the lie detector test. We reversed the first conviction in part because of such a reference. See Roleson v. State, supra. The court held an in-chambers hearing and allowed both sides an opportunity to argue this question. The trial judge finally decided that this delicate line of questioning should not be pursued. We cannot be critical of the trial court’s approach because he bore the responsibility for a mistrial or retrial. It is the trial court’s duty to see that no mishaps occur as might have occurred here, and we find no manifest abuse of discretion.

The State was allowed to ask Rosa Lipe and Bill Bushong questions that related to Cecelia Roleson’s personality. The answers suggested she was a domineering person. It is argued this was evidence of character and inadmissible under Ark. Stat. Ann. § 28-1001, Rule 404 (a). In support of their argument the defense points out that Roleson had not testified and had not placed her character in evidence. Actually, such evidence does not fit into what is usually considered character evidence or a trait. This was a case involving at least one principal and two accomplices. Each person’s role in the crime was relevant in this case. In Sumlin v. State, 274 Ark. 185, 617 S.W.2d 373 (1981), we referred to evidence that had been presented that Warren Sumlin, an accomplice, exercised control over his wife, Ruth Sumlin, the principal. We can say without doubt the evidence was not prejudicial error. There was other substantial evidence that Cecelia Roleson supplied the gun and was the key person in the murder. If it was error, it was harmless. See Chapman v. California, 386 U.S. 18 (1961); Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980).

Cecelia Roleson argues that the photographs admitted were inflammatory, prejudicial and irrevelant and require reversal. For a murder case they were unexceptional. We find the trial judge to be correct in admitting them. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).

The appellant cites three incidents of what she claims is prosecutorial misconduct. One is where the State asked whether the police had promised Rosa Lipe protection. Another incident was a question about an incident at school involving Rosa’s son and Cecelia Roleson. The last incident was regarding a question to the Rolesons’ son about Rosa’s son moving out of town after the murder. The defense neglected to demonstrate how these questions prejudiced the appellant. There was no showing that the trial judge abused his discretion. See Shepherd v. State, 270 Ark. 457, 605 S.W.2d 414 (1980). The objection to the last question was sustained and the jury was admonished, thereby curing any possible error. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). It is argued in passing that error occurred during the cross-examination of certain defense witnesses and it was error to restrict the direct examination of two defense witnesses. We do not find that the trial court abused its discretion. See Shepherd v. State, supra.

Both the State and Roleson were represented by able counsel who sought throughout the trial to vigorously represent their respective interests to the fullest, within the rules for the conduct of trials. The trial court was presented with some difficult decisions and virtually every one of those decisions is questioned on appeal. Due process requires a fair trial, not a perfect one and Cecelia Roleson received a fair trial. Any possible errors, and they are only possible in our judgment, did not result in prejudice to the appellant and, therefore, reversal is not required. See Chapman v. California, supra and Kitchen v. State, supra.

We have reviewed the entire record as we are required to do, and have found no prejudicial errors.

Affirmed.


author: John I. Purtle, Justice.

text:
    Donnie Ray SANDERS v. STATE of Arkansas
    CR 82-72
    639 S.W.2d 733
    Supreme Court of Arkansas
    Opinion delivered October 11, 1982

      James O. Fels, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The Jefferson County Circuit Court convicted appellant of rape and sentenced him to a term of 40 years. On appeal he alleges (1) the insufficiency of the evidence; (2) the trial court should have directed a verdict of acquittal; and, (3) the trial court should have granted a mistrial. We cannot agree with any of these arguments.

We first deal with the sufficiency of the evidence. The twelve year old victim testified that the appellant placed his hands between her legs and his finger penetrated her body. It is true she later said she could not say whether either his finger or his penis penetrated her body. In any event, the uncorroborated testimony of a rape victim has many times been held sufficient to uphold a conviction. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981), and Smith v. State, 277 Ark. 64, 638 S.W.2d 692 (1982). On appeal we view the matters in the light most favorable to the appellee and affirm if there is substantial evidence to support the decision. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). Likewise, we have held that circumstantial evidence may be sufficient to support a conviction. Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974). The victim also testified she was afraid and that appellant pulled her arm and threatened to kill her mother.

Appellant’s second argument was that he was entitled to a directed verdict. Like appellant we agree this point needs no discussion in view of what was said under the first argument.

Lastly it is argued that the court erred in failing to grant a mistrial when a policeman testified about an independent criminal activity. The officers were called to the victim’s home, which was rented by her mother, and were invited in for the purpose of arresting the appellant on a charge of rape. While in the house one officer stated: “I observed items in the bedroom that were believed to be controlled substances. Numerous seeds ...” Appellant’s counsel immediately objected and moved for a mistrial. The motion was denied and the jury was instructed to disregard the statement regarding the observation of this evidence. Subsequently another officer testified: “I remained in the house collecting evidence on the other charge.” Again, appellant’s counsel objected and moved for a mistrial. The court also overruled the second motion for a mistrial. The trial court recognized the manifest impropriety of these officers voluntarily furnishing information about an alleged.crime which was not the subject of this trial. In view of the fact that the jury was admonished to disregard such testimony the first time it was mentioned and that the appellant did not request an admonition on the second happening, we cannot say the result was prejudicial error. We agree with appellant that we still rely on Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). We do not allow unrelated criminal acts for the purpose of showing that the accused is a person of bad character. The exceptions to this rule are too numerous to mention. We must also consider the fact that on cross-examination the appellant’s attorney questioned the officer as follows:

Question: All you did was go in and arrest a man and pick up some clothes. What exactly did you pick up. You mentioned evidence.
Answer: The controlled substance that was in —
DEFENSE COUNSEL: Not relevant. I move for a mistrial for that.
THE COURT: You invited the question.

A mistrial is an extreme remedy and will be granted only when no other action by the court will insure a fair trial. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). We do not find that the appellant was prejudiced by the manner in which this improper evidence was handled.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    William F. EVERETT, Director of Labor, and NEKOOSA PAPER, INC. v. Judy JONES
    82-66
    639 S.W.2d 739
    Supreme Court of Arkansas
    Opinion delivered October 11, 1982

      Gary Williams, for petitioners.
    No brief filed for respondent.
   Robert H. Dudley, Justice.

Respondent filed a claim for unemployment insurance benefits with the Employment Security Division of Arkansas Department of Labor. The Agency, Appeals Tribunal and Board of Review, created by the Employment Security Law, held she was not entitled to the benefits. The Court of Appeals reversed and remanded with directions to extend benefits holding that, under the circumstances, the Employment Security Division was estopped to deny the benefits to respondent. Jones v. Everett, Director, 4 Ark. App. 169, supplemental opinion at 174A and 174B, 629 S.W.2d 305 (1982). We granted certiorari pursuant to Rule 29 (1) (c) to determine whether there was error in extending the doctrine of estoppel against the State. We reverse the Court of Appeals and affirm the judgment of the Board of Review.

Judy Jones, respondent, voluntarily quit her last work as a secretary in Ashdown to move to El Dorado with her husband. On June 8, after arriving in El Dorado, she applied for unemployment insurance benefits. On June 23, more than two weeks after filing her claim, respondent declared n a certified statement that she had not contacted any employers but had checked with friends about employment openings.

Ark. Stat. Ann. § 81-1106 (a) (Supp. 1981) disqualifies employees from benefits if they voluntarily leave work unless they qualify under an exception by immediately entering the labor market after following their spouse to a new place of residence. The Agency disqualified respondent from receiving benefits becuse she had “made no realistic effort to locate employment...” Respondent gave notice of appeal by letter.

At the appeals hearing the respondent testified that her earlier statement was not correct and that, instead of not contacting any employers, she had contacted four potential employers. She explained the discrepancy by stating that her first statement referred to employers to whom she had actually made job application while her subsequent testimony referred to employers she had contacted who were not then accepting job applications. At the hearing she could not recall the names of any of the persons who refused to let her make a job application nor could she remember the dates she talked to them. She testified that, in addition, she mailed two resumes to employers. Subsequent to the hearing she gave by letter the dates on which she alleged that she had contacted employers. The Appeals Tribunal and the Board of Review upheld the Agency finding that respondent did not immediately enter the labor market. The Court of Appeals reversed and remanded with directions to award benefits. Jones v. Everett, Director, supra.

In reviewing the sufficiency of the evidence on appeal of Employment Security cases to the Arkansas Court of Appeals, the evidence is to be considered in the light most favorable to the successful party below and the decision is to be affirmed if there is substantial evidence to support the decision. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978); Ark. Stat. Ann. § 81-1107 (d) (7) (Supp. 1981).

Respondent’s first statement that she did not contact any employer for a little longer than the first two weeks of unemployment was substantial evidence to support the findings of the Board of Review. The Board was not bound to believe her subsequent explanation. However, the Court of Appeals held that the petitioner was estopped to deny that respondent immediately entered the job market.

In its supplemental opinion, the Court of Appeals stated that it based its holding of estoppel on the actions of the agency at its initial contact with appellant. The Court of Appeals found that during the two week interval from petitioner’s first visit until her second she had absolutely no guidance and was never advised of what was required of her in order to draw benefits during her period of unemployment. In addition, according to the Court, the agency created a situation where the claimant could have reasonably believed that she needed only to return on the assigned date.

However, the only evidence in the record of the actions of the agency in its initial contact with respondent is in her statement in the notice of appeal, quoted by the Court as follows:

In my opinion I have followed every procedure you have set forth. Upon arriving in El Dorado, I immediately went to the Employment Security Division and signed up for employment. At that time I was not informed of any particular procedure I was to follow in seeking employment. The only information I was given was to fill out the paper I was given and return on 6-23-81 to see a film that would give me complete details regarding my responsibilities and unemployment insurance. . . .

The Court of Appeals in holding that the State is estopped to deny benefits to respondent stated:

[O]n these facts, and based on prior holdings of this Court and the Arkansas Supreme Court, we hold that the Employment Security Division is estopped to deny benefits to the appellant. Where the claimant has relied on the failure of Employment Security Division to advise of any additional requirements, that Agency should not be allowed to turn around and impose additional requirements, which were unknown to the claimant, in order to deny her benefits. Obviously, a claimant must make an attempt to find a job in order to be qualified under the Act, but if the Agency wishes to impose specific requirements such as two job contacts a week, four contacts a week, or any other such number, claimants should be advised of what those requirements are at the time they make initial contact with the Agency.

In Foote’s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980), we abandoned the principle that the doctrine of estoppel could never be applied against the State and announced that estoppel would lie against the State in very limited circumstances. However, this doctrine is to be applied against the State only when there is substantial proof and a compelling reason. Here there was no substantial proof of the only allegation of affirmative misconduct. That allegation was made in respondent’s notice of appeal quoted above. In addition, the State was never given the opportunity to submit evidence to rebut the allegation.

In Rainbolt v. Everett, 3 Ark. App. 48, 621 S.W.2d 877 (1981) the Court of Appeals properly refused to apply estoppel without the State first being afforded the opportunity to submit evidence to rebut appellant’s claim about false representations by an agent of the Employment Security Division. There the Court reversed and remanded the case for additional evidence on the issue of estoppel. See also, Clay v. Everett, 4 Ark. App. 122, 628 S.W.2d 339 (1982); Foote’s Dixie Dandy, Inc. v. McHenry, supra; Ark. Stat. Ann. § 81-1107 (d) (7) (Supp. 1981). In this case the only evidence presented other than the statement in the notice of appeal, was on the issue of immediate entry into the labor force. Yet, while there was no substantial proof on the estoppel issue, the Court of Appeals made a finding on the merits of estoppel. This was error.

The other reasons given by the Court of Appeals for applying the doctrine do not involve allegations of affirmative misconduct. They can be summarized as findings of unconscientiousness on the part of the administrative agency. Likewise these issues were not fully developed below and there was no substantial proof of lack of conscientiousness. Certainly, we do not intend that the Foote’s doctrine be extended to a nebulous and indefinite situation where the agent of the State has not clearly caused the claimant to believe that nothing more is necessary other than to return on the assigned date. We additionally note that the General Assembly has provided: “Mere registration and reporting at a local employment office shall not be conclusive evidence of the ability to work, availability for work, or willingness to accept work unless the individual is doing those things which a reasonably prudent individual would be expected to do to secure work.” Ark. Stat. Ann. § 81-1105 (c) (Repl. 1976).

The function of the Employment Security Division is to administer the Act and to make sure that only those persons who are entitled to benefits receive them. The law imposes a requirement on the claimant to do those things which a reasonable person would do to seek work. Ark. Stat. Ann. § 81-1105 (Repl. 1976). The requirement is for the benefit of the general public and is to prevent payment of benefits to persons who are not entitled to them. Before the State is estopped from applying this law there must be substantial evidence that the citizen relied upon actions or statements by an agent of the State.

There was no substantial evidence to apply the doctrine of estoppel against the State in this case. Therefore we reverse the decision of the Court of Appeals and affirm the decision of the Board of Review.

Reversed and the judgment of the Board of Review is affirmed.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Lester Ray HALFACRE v. STATE of Arkansas
    CR 82-47
    639 S.W.2d 734
    Supreme Court of Arkansas
    Opinion delivered October 11, 1982

      Bill W. Bristow and Kelley Webb, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

The appellant, Lester Halfacre, was charged with capital murder, it being alleged that he deliberately caused the death of two persons in the course of the same criminal episode. Appellant admitted firing the shots that caused the two deaths, but claimed he acted in self-defense. On September 18, 1981, the appellant was found guilty on a lesser charge of first degree murder and sentenced to 50 years.

I.

The appellant raises three points on appeal. He first argues that the trial court erred in not admitting testimony of specific prior violent acts of the victims which were unknown to the appellant. He argues that the testimony should be admitted under Rule 404 of the Arkansas Rules of Evidence because evidence of a specific prior act is relevant on the issue of who is the aggressor. The trial court had admitted testimony as to the reputation of the two victims, under Rule 404 (a), and also admitted specific prior acts of the victims which the appellant did have knowledge of, as probative of what he reasonably believed, relevant to his plea of self-defense. The trial court excluded the testimony at issue because such evidence was not probative of what the appellant reasonably believed.

The Arkansas Rules of Evidence make it clear that the trial court was correct in its ruling. Testimony pertaining to the victim’s character is admissible under Rule 404 (a) but the method for proving character is specifically limited on direct examination by Rule 405 (a) to “testimony as to reputation or by testimony in the form of an opinion”. Rule 405 (b), allowing specific acts, can only be used if necessary to prove “an essential element of... the defense.” The same question arose in McClellan v. State, 264 Ark. 223, 570 S.W.2d 278 (1978) where we affirmed the trial court’s exclusion of similar evidence. We found the ruling conformed to the Rules of Evidence and that the character of the victim is not an essential element in the defense of self-defense:

In the case at bar the question, then, is whether Sitz’s character as an aggressive person was “an essential element” of McClellan’s defense of self-defense. Obviously it was not. One might plead self-defense after having killed the most gentle soul who ever lived. In such a situation the decedent’s character as a possible aggressor is being used circumstantially, not as a direct substantive issue in the case. The trial judge was therefore correct in disallowing the proffered proof of a specific instance of aggression on the part of the decedent.
McClellan at 227.

The appellant cites in support of his argument, our recent decision in Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981) where the following language was used:

Evidence of a victim’s violent character, including evidence of specific violent acts, is admissible where a claim of justification is raised. Such evidence is relevant to the issue of who was the aggressor and whether or not the accused reasonably believed he was in danger of suffering unlawful deadly physical force. Smith at 49.

Appellant asks that should we find Smith as holding that evidence of prior acts of aggression of the victim be offered by the defendant on the question of who was the aggressor, that we should so rule and follow other jurisdictions that have adopted such a rule.

We disagree with appellant on both points.

Although the language itself in Smith is open to interpretation, the facts in Smith were significantly different from the facts in this case as to leave no doubt as to the meaning of those words. In Smith, the trial court had excluded not only evidence of incidents defendant knew of but also incidents directed against the defendant. In sharp contrast are the specific acts that appellant in this case proffered that not only did not involve the appellant but were incidents that he had no knowledge of. Given the facts in Smith, the plain language of the rules and our recent decision in McClellan, supra, we find no reason to give Smith the more expansive reading that appellant suggests.

We find appellant’s suggestion that we follow the lead of other jurisdictions that have adopted the interpretation he advocates, to have no merit. The cases that appellant cites involve the issue of excluding evidence about the victim’s character that was unknown to the defendant. Admitting character evidence by testimony of specific acts is not in issue. The courts in those cases ruled that the evidence could come in but in the form of reputation. See Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977).

Appellant also insists it was error to deny him the right to corroborate those specific instances of violence for which a foundation had been laid by showing the event to have been communicated to appellant. We disagree. In determining the reasonableness of appellant’s plea of self-defense, the relevant issue was not whether Doyle Hammonds and Terry Brooks had started fights, but whether appellant was aware of such incidents. Thus, the trial judge did not err in refusing to permit the corroboration.

II.

Appellant’s second argument alleges the trial court erred in excluding evidence pertaining to prior specific acts of relatives of one of the victims against the appellant or his brother, as it was relevant to the appellant’s state of mind and the reasonableness of his fears of the victim. The trial court excluded it under Rule 403 of the Arkansas Rules of Evidence.

We will not overturn a trial court’s relevancy ruling absent a showing of abuse of discretion. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). In this case there was a substantial amount of evidence admitted that was pertinent to the victim’s character, by testimony of the victim’s reputation and of the victim’s specific prior acts — not only those involving the appellant, but also those involving the victim and third parties. In addition, the trial court did admit some evidence that related to the appellant’s fear of the Hammonds family and their reputation. It is within the trial court’s discretion if the evidence is cumulative or could lead to confusion of the jury, to exclude such evidence. The facts in this case could support such a finding and we find no abuse of discretion.

III.

In his last point, the appellant argues that the trial court erred in refusing to grant a continuance because the prosecution had not filed a written response to the appellant’s motion. Appellant states that the defense counsel participated in the open file policy of the prosecutor, but argues that there is an inherent disadvantage to the defense when the state simply follows an open file policy rather than respond in writing.

We find no merit in the appellant’s argument as the prosecution complied fully with the discovery requirements of Rule 17.2 (b) of the Arkansas Rules of Criminal Procedure which states:

(b) The prosecuting attorney may perform these obligations in any manner mutually agreeable to himself and defense counsel or by:
(i) notifying defense counsel that material and information, described in general terms, may be inspected, obtained, tested, copied, recorded or photographed, during specified reasonable times; or;
(ii) making available to defense counsel at a time specified such material and information, and suitable facilities and arrangements for inspection, testing, copying, recording or photographing of such material and information.

Also, appellant acknowledges in his argument that he cannot point to any particular incident that occurred during the trial that prejudiced his defense in any particular manner. A similar argument was raised and answered in Cardwell v. State, 264 Ark. 862, 575 S.W.2d 682 (1979) and we find no foundation for reversal in the facts presented.

John I. Purtle, Justice,

dissenting. I respectfully dissent from the majority opinion on the matter of whether specific acts of prior conduct were admissible in this case. Specific acts are generally allowed for the purpose of showing the state of mind of the accused. In such cases it is necessary to prove knowledge on the part of the accused of the acts shown to be introduced. However, the question of who was the aggressor is more complex. It seems to me that any evidence which would tend to help the jury decide who was the probable aggressor should be allowed into evidence. This includes any specific act on the part of the attacker which may be relevant to the issue in question.

We have stated in the case of Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981):

Evidence of a victim’s violent character, including evidence of specific acts, is admissible where a claim of justification is raised. Such evidence is relevant to the issue of who was the aggressor and whether or not the accused reasonably believed he was in danger of suffering unlawful deadly physical force (cites omitted).

The broad rule could hardly be more clearly stated than through the above quotation. The majority relies to a great extent on the case of McClellan v. State, 264 Ark. 223, 570 S.W.2d 278 (1978). However, as I view McClellan, it did not preclude the ruling in Smith. In McClellan we stated:

Thus the question is, when is a trait of character strictly in issue? The answer, in the language of Rule 405 (b), is when the trait is “an essential element of a charge, claim, or defense.”

We further explain in McClellan that the trait of character sought to be proven must be an “operative fact” in order to allow such facts to be presented in evidence. Our conclusion in McClellan was stated as follows: “In the case at bar the question, then, is whether Sitz’s character as an aggressive person was ‘an essential element’ of McClellan’s defense of self-defense. Obviously it was not.”

In the present case no one can deny that from the very beginning an “essential element” of the appellant’s defense was justification. It was obvious that he relied upon the general reputation that the decedents were of such a character as to render them almost certain to be the aggressors in the present case. Thus, I do not feel that McClellan v. State, supra, is contrary to this holding. However, if it should be, it is clearly overruled in Smith v. State, supra, since Smith was the latest pronouncement on the subject by this court.

      Ark. Stat. Ann. § 41-507 (1) (Repl. 1977). Justification. Use of deadly physical force in defense of a person. (1) A person is justified in using deadly physical force upon another person if he reasonably believes that the other person is: (a) committing or about to commit a felony involving force or violence; or (b) using or about to use unlawful deadly physical force.


text:
    Tywanna MARTIN v. STATE of Arkansas
    CR 78-165
    639 S.W.2d 738
    Supreme Court of Arkansas
    Opinion delivered October 11, 1982
    Petitioner, pro se.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for respondent.
   Per Curiam.

Petitioner Tywanna Martin was convicted by a jury of capital murder and kidnapping. She was sentenced to life imprisonment without parole for murder and 20 years imprisonment for kidnapping. The sentences were ordered served consecutively. We affirmed. Hallman & Martin v. State, 264 Ark. 900, 575 S.W.2d 688 (1979). Petitioner now seeks permission to proceed under Arkansas Criminal Procedure Rule 37 for postconviction relief.

Rule 37.2 (c) provides that a petition under Rule 37 must be filed within three (3) years of the date of commitment unless the ground for relief would render the judgment void. Petitioner was committed to the Arkansas Department of Correction on April 17, 1978. Her petition is therefore untimely unless we find a ground for relief alleged which would render the judgment for murder or kidnapping void. We find no such ground with regard to the murder conviction but do find reason to set aside the 20 year sentence for kidnapping.

Petitioner alleges that it was improper for her to be convicted and sentenced for capital murder and kidnapping since kidnapping was the underlying specified felony to the charge of capital murder. She asserts that the conviction violated the constitutional prohibition against double jeopardy.

This Court has held that when a criminal offense by definition includes a lesser offense, a conviction cannot be had for both offenses under Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977). Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). The statute provides:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense, if:
(a) one offense is included in the other as defined in subsection (2);
(2) A defendant may not be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense (required to establish the commission of the offense) charged; or
(b) it consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(c) it differs from the offense charged only in the respect that a less serious risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

In proving the elements of capital murder, it is necessary to prove the elements of kidnapping. In light of our recent holdings in regard to Ark. Stat. Ann. § 41-105 (1) (a) in Rowe, Singleton, Simpson and Swaite, supra, we find that the trial court did not have the authority to convict petitioner of kidnapping. The judgment is therefore void, and, in accordance with Rule 37.1, we set aside petitioner’s conviction and sentence for the lesser included offense of kidnapping. The conviction and sentence for capital murder are not disturbed.

Petitioner also raises six (6) allegations of ineffective assistance of counsel. None of the allegations is sufficient to render the judgment in petitioner’s case void. Accordingly, they are untimely raised.

Petition granted in part and denied in part.