text:
    John Wayne HALBROOK v. STATE of Arkansas
    CR 94-1043
    891 S.W.2d 379
    Supreme Court of Arkansas
    Opinion delivered January 30, 1995

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.
    . Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

John Wayne Halbrook, the appellant, was convicted of two counts each of kidnapping, theft, and aggravated robbery. He was sentenced as an habitual offender with more than four prior felony convictions to a total of 265 years imprisonment. His sole point of appeal is that the Trial Court erred in declining to suppress the identification of him by the two victims during the trial. As Mr. Halbrook made no objection during the trial to the testimony of the victims identifying him as their assailant, we affirm.

The charges all arose from an incident involving Mr. Hal-brook and two women. The women testified that, as they were about to enter the car of one of them after having dinner at a downtown Little Rock hotel restaurant, Mr. Halbrook accosted them with a large knife. He held it to the throat of one of them and forced her into the driver’s seat of her car. The other woman got into the passenger seat out of fear that if she did not do as Mr. Halbrook said her friend would be killed. She felt one of them alone would have no chance to survive but two might.

Continuing to wield the knife from the back seat and actually cutting the face and neck of one of the victims, Mr. Hal-brook forced the women to drive about Little Rock in a search for $900 which Mr. Halbrook demanded from them. They went to automatic teller machines, and grocery and convenience stores. The victims got some money from the teller machines and gave it to Mr. Halbrook. They ultimately escaped from him at a convenience store in which one of the women was to cash a check. When it appeared to Mr. Halbrook that the victim who had entered the store was alerting store personnel to her situation, he came over the back of the front seat of the car, and the other victim was able to escape from the car, injuring herself in the process. Mr. Halbrook drove away in the car and was later apprehended.

At a pretrial suppression hearing evidence was heard with respect to whether a police lineup, at which Mr. Halbrook was identified quickly and positively by one of the victims and as a “look alike” by the other victim, was improperly suggestive. Mr. Halbrook had been described by the victims as a light skinned African American with freckles. A copy of a photograph of the lineup shows six African American males of varied complexions. Mr. Halbrook was the one with the lightest skin. The motion to suppress was denied.

At the trial no objection was made to the testimony of either of the victims positively identifying Mr. Halbrook as their attacker. The victim who was driving the car said she could see him in her rear view mirror during the two-hour ordeal. Although the incident occurred after dark, the light was sufficient for her to see his face which she could “never forget.” The other victim said all she could see was his profile because he threatened to kill her when she looked back at him, but she was positive in her identification.

We have not been favored with an abstract of Mr. Halbrook’s suppression motion. We do have in the abstract the testimony taken at the suppression hearing which, as stated above, concerned the suggestiveness of the pretrial lineup identification. We have no abstract of the Trial Court’s decision on the motion to suppress, but there is an “abstractor’s note” stating only that “The court denied the motion to suppress the physical lineup.” Be that as it may, the identification at the trial of Mr. Hal-brook by the victims was positive and unequivocal. Identification testimony may be sufficiently reliable to overcome the fact that a pretrial identification was made in a setting that was suggestive. See Chism v. State, 312 Ark. 559, 853 S.W.2d 555 (1993). Again, the point on appeal is that the “in-court identification” should have been suppressed, and yet no objection was made on that or any other basis to the trial testimony of the two victims in which they positively identified Mr. Halbrook.

In Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1994), and Jackson v. State, 318 Ark. 39, 883 S.W.2d 466 (1994), we were asked to reverse on the ground that the pretrial identifications were too suggestive, and thus evidence of them should not have been admitted at the trials. There was a motion to suppress which was denied by the Trial Court in each case. We declined to reverse in each instance on the ground that no objection was made at the trial to the introduction of the pretrial identification and thus the issue was not preserved for appeal.

The same rule applies here. The reliability of the identification becomes an issue at the trial if an objection is made. Otherwise, the matter is not preserved for appeal.

Affirmed.


source: Caselaw Access Project

author: Tomí Glaze, Justice.

license: Public Domain

text:
    David P. HENRY v. PULASKI COUNTY ELECTION COMMISSION City of Little Rock, Intervenor

    94-1310
    891 S.W.2d 61
    Supreme Court of Arkansas
    Opinion delivered January 30, 1995

      Henry Law Firm, P.A., by; David P. Henry, for appellant.

      Thomas M. Carpenter and William C. Mann, III, for appellee.
   Tomí Glaze, Justice.

Appellant David P. Henry was a candidate for Little Rock Municipal Court in the November 8, 1994 General Election. He had two opponents, David Stewart and Dana Reece. Stewart won the election by a plurality, receiving forty-three percent of the votes. Henry and Reece garnered respectively thirty-five and twenty-two percent of the votes cast. On November 14, 1994, Henry filed suit against the Pulaski County Election Commission in circuit court, requesting a runoff election be held because no candidate received a majority of the votes. The City of Little Rock was permitted to intervene and, subsequently, its motion to dismiss Henry’s suit was granted.

Henry’s argument, at trial and now on appeal, challenges certain Arkansas statutes as being special or local legislation and violative of Ark. Const, amend. 14. Those statutes, in relevant part, provide that municipal officers, including judges, of municipalities having the city manager form of government shall be elected to the office sought without obtaining a majority of the votes cast or requiring a runoff election. See Ark. Code Ann. §§ 16-17-208 (Repl. 1994), 14-47-109(c) and -110(a)(4) (Cum. Supp. 1993), and 7-5-106 (Repl. 1993). In particular, Henry points to § 7-5-106 where paragraph (a) of that statute, among other things, provides that, where no candidate for any municipal office receives a majority of the votes cast at the general election, a runoff election shall be held two weeks later. However, paragraph (b) of § 7-5-106, in pertinent part, provides “the term ‘municipal officers’ [used in paragraph (a)] shall not include officers of cities having a city manager form of government” and “[§ 7-5-106] shall not be applicable to election of members of the board of directors and other officials of cities having a city manager form of government.” It is this exception contained in paragraph (b) that Henry argues is violative of Ark. Const, amend. 14.

The case of Whittaker v. Carter, 238 Ark. 1074, 386 S.W.2d 498 (1965), is helpful in resolving the issue before us. There, Whittaker sought to enjoin Ft. Smith officials from holding a city election under Act 3 of 1965. That Act purported to change the date of municipal general elections in all cities having a commission form of government. Although municipal officials in all other cities and incorporated towns were required to conduct their elections on the date of the November general election pursuant to Act 307 of 1949, the General Assembly in 1965 enacted Act 3, which changed the date of election in cities having the commission form of government to the fourth Tuesday in February. Whittaker argued that Act 3 was local and special legislation, and municipalities with the commission form of government should hold elections in November like other cities and towns. This court disagreed.

The Whittaker court recognized the validity of legislation by classification and, by example, pointed out that, in Knowlton v. Walton, 189 Ark. 901, 75 S.W.2d 811 (1934), the court had approved legislation classifying cities subject to the city manager form of government on the basis that the Legislature considers there exists a greater need for that type of government in larger cities than in the smaller ones. The court further recognized that Ft. Smith was within the commission form of government classification, and Act 3 applied with equal impact upon all cities and towns having that form of government. The court then held as follows: .

There is a presumption of validity attending every legislative enactment. We perceive no reason why the Legislature does not have the authority to deem it necessary to select an election date for all cities having a Commission form of government that is different from the election date in those cities having other types of city government. We find no constitutional impediment to [Act 3].

The principles and rationale in Whittaker apply here. Section 7-5-106(b) is a general law which applies with equal impact upon all cities having a city manager form of government. Thus, considering the presumptive validity to be given that statute, we are unaware of any reason why the General Assembly cannot provide a vote requirement for electing a municipal judge in all cities having a city manager form of government different from vote requirements for judges of cities having other types of city government.

In conclusion, we note Henry’s mention and reliance on Knoop v. City of Little Rock, 277 Ark. 17, 638 S.W.2d 670 (1982), where the court held that Act 539 of 1981 was special legislation and contravened Ark. Const, amend. 14. The Knoop decision merely illustrates the correctness of our holding here. There, the statutory law generally provided that municipal officers of a city manager form of government were to be elected by a plurality vote. Act 539, however, empowered city manager governments, having over 100,000 people, to directly elect their mayor or board of directors by a majority vote and required a runoff election, if necessary. Of eight Arkansas cities having a city manager form of government, only Little Rock was granted this authority under Act 539. Obviously, Act 539 was a special or local law that did not equally impact all cities having a city manager form of government.

For the reasons above, we affirm.

       Because Henry’s claim included a constitutional challenge to Arkansas statutes, the trial court determined the Attorney General had been properly notified of the challenge and had declined to make an appearance.

       Cities with the commission form of government also had been excepted under Act 307 so as to authorize them to hold elections in April when other municipalities were required to hold elections in November. Act 3 merely changed the election date for city commission governments from April to February. Because Act 3 was the legislation in effect when the Whittaker suit was commenced, we refer to it in our discussion, since Act 3 was the law under attack.

       At the time, Ft. Smith and Eureka Springs were the only cities having the commission form of government, but the court concluded the classifying legislation was valid because it was prospective and reasonable since it included any other city in the future that comes within the classification.

       The Knoop court further stated that, while the General Assembly might draw population classifications that treat cities differently when the purpose of the act is based on a reasonable and sound basis due to substantial differences and needs, it could not find any reasonable basis in the differences provided in Act 539.


author: Donald L. Corbin, Justice.

text:
    STATE of Arkansas v. Laronne Marco GRAY
    CR 94-870
    891 S.W.2d 376
    Supreme Court of Arkansas
    Opinion delivered January 30, 1995

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.
    No response.
   Donald L. Corbin, Justice.

Appellant, the State of Arkansas, appeals the order of the Desha County Circuit Court dismissing the felony information filed on August 24, 1993 against appellee, Laronne Marco Gray, a juvenile defendant, charging him with one count of burglary, a Class B felony, and one count of theft of property valued in excess of $200.00, a Class C felony. These offenses arose from appellee’s alleged conduct on June 23, 1993, at which time he was on probation by order of the Desha County Chancery Court, Juvenile Division, having been there adjudicated a delinquent on March 9, 1993 as a res.ult of other crimes. Appellee’s motion to dismiss was based on double jeopardy grounds and was predicated on a juvenile court proceeding, conducted on August 19, 1993, to revoke his probation. On appeal, the state argues jeopardy did not attach by virtue of the August 1993 juvenile court proceeding. Because resolution of this appeal requires our construction of Ark. R. Crim. P. 36.10(b) and (c), the rules governing appeals by the state from final judgments, jurisdiction of this appeal is in this court pursuant to Ark. Sup. Ct. R. l-2(a)(3). State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992). We hold this appeal does not satisfy the requirements of Rule 36.10, and dismiss it.

The facts of this case are not disputed. On March 9, 1993, the juvenile court adjudged appellee a delinquent due to certain acts which he committed on December 30, 1992 and January 7, 1993. The juvenile court placed appellee on supervised probation until November 5, 1994, subject to conditions, and committed him to the state’s Division of Youth Services, but suspended the commitment sentence.

On June 18,1993, the state filed a petition to revoke that probation. The petition was twice amended. Each of the amended petitions included, among other reasons for revocation, the offenses allegedly committed by appellee on June 23, 1993. On August 19, 1993, a hearing was held on the second amended revocation petition. Appellee appeared and was represented by legal counsel. He pleaded guilty to all of the offenses alleged as reasons for revocation, including the offenses of June 23, 1993. Also on August 19, 1993, the juvenile court entered its “Order of Commitment” finding the allegations included in the state’s second amended petition were true, adjudging appellee a delinquent because he had committed numerous offenses, including the offenses of June 23, 1993, and, finally, committing appellee to the state’s Division of Children and Family Services.

On August 24, 1993, the state filed the contested felony information. There is no dispute that the offenses of June 23, 1993 listed in the juvenile court’s Order of Commitment and the offenses charged in the circuit court felony information arose from the same conduct. In January 1994, appellee filed his motion to dismiss on the basis of double jeopardy by reason of the juvenile court’s Order of Commitment; the state responded that jeopardy had not attached. The circuit court entered an order on May 17, 1994 granting the motion to dismiss the felony information as barred by double jeopardy. This appeal by the state arises therefrom.

The threshold issue in this case is whether the state is permitted to appeal the circuit court’s order of dismissal. We note initially that no brief or other response was filed by appellee in this appeal. Although the issue was not raised by the parties, we have a duty to raise this question as it is a matter of subject matter jurisdiction. State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). Rule 36.10(c) permits an appeal by the state to this court from a final order where the attorney general is satisfied that prejudicial error has been committed with respect to the state and that review is required for the correct and uniform administration of the criminal law. We find these requirements are not satisfied, hence the appeal must be dismissed.

As noted, the conduct upon which the felony information is based occurred on June 23, 1993. Appellee, born July 23, 1977, was then fifteen years old. This court has stated that jurisdiction of the juvenile court is exclusive and original with respect to all offenses charged against a juvenile who is fourteen years old at the time of the commission of those offenses, with the exception of certain offenses enumerated in Ark. Code Ann. § 9-27-318(b)(1) (Repl. 1991). Banks v. State, 306 Ark. 273, 813 S.W.2d 256 (1991). The same law applies to juveniles who are fifteen years old at the time of the commission of the alleged offenses. See Ark. Code Ann. §§ 9-27-318(a) and (b). The offenses enumerated in section 9-27-318 which the state may choose to charge in circuit court against a fifteen-year-old defendant do not include the offenses charged in the contested felony information. Hence, the circuit court lacked jurisdiction of the offenses charged against appellee in that instrument, and should have dismissed the felony information on that basis. Banks, 306 Ark. 273, 813 S.W.2d 256.

On these facts, we cannot say the state has been prejudiced by the circuit court’s dismissal of the felony information, nor can we find that review of this case is required for the correct and uniform administration of the criminal law in view of the fact that the state brought its charges against appellee in the wrong court. For the foregoing reasons, the state has failed to satisfy Rule 36.10. Because we can ascertain no basis for jurisdiction of this appeal in this court, we dismiss it without considering its merits.

      As noted in the Banks decision, section 9-27-318 was amended by Act 903 of 1991. Thereafter section 9-27-318 was further amended by Act 1189 of 1993, and Acts 39 and 40 of 1994 (2nd Extraordinary Session). None of these amendments adds the offenses charged in the felony information in the instant case to the list of enumerated offenses which the state may choose to charge in circuit court against a fifteen-year-old defendant.


author: Robert L. Brown,

text:
    STATE of Arkansas v. Frank KINARD
    CR 94-896
    891 S.W.2d 378
    Supreme Court of Arkansas
    Opinion delivered January 30, 1995

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellant.
    No brief filed.
   Robert L. Brown,

Justice. This is a one-brief case. The State brings this appeal pursuant to Ark. R. Crim. P. 36.10 on the basis that the correct and uniform administration of the criminal law requires our review. The State contends that the trial court sentenced appellee Frank Kinard illegally in that the sentence imposed was for less than the minimum number of years required for a habitual offender with Kinard’s criminal record. We agree, and we reverse and remand.

On August 10, 1993, the State filed a felony information against Kinard, accusing him of raping a girl less than fourteen years of age on or about June 11, 1993. The information also charged Kinard as a habitual offender with more than one but less than four previous felony convictions. On May 16, 1994, Kinard executed a guilty plea statement which stated that he could receive a sentence of from ten years to sixty years, or life, in the state penitentiary. Also, at the ensuing guilty plea hearing that same day, the trial court told Kinard that he could receive from ten to sixty years, or life, as a repeat offender. The State did not object to the court’s statement at that hearing, although the reference to the minimum sentence was in error. Later that same day, the State did move to correct the range of punishment to show that the minimum sentence available at the time the crime was committed was twenty years under Ark. Code Ann. § 5-4-501 (1987) — not ten. The defendant responded that a new statute was in effect lessening the minimum penalty to ten years, and that because the penalty was reduced, the new statute could be applied retroactively. Kinard did not request to withdraw his guilty plea.

Almost a month later on June 13, 1994, the trial court conducted a sentencing hearing for Kinard. At that hearing, the court heard testimony and arguments by counsel and ultimately determined to sentence Kinard to eighteen years imprisonment, over the State’s objection. At the same hearing, defense counsel noted for the record that she had informed Kinard that the State could appeal the sentence and that upon reversal he could receive twenty years or more. Kinard, again, did not move to withdraw his guilty plea, and he does not raise the issue of withdrawing his plea in this appeal.

We begin by agreeing with the State that the question before us — the retroactive application of a new and reduced criminal penalty — is important to the correct and uniform administration of criminal law in this state. Having said that, we note that the issue in this case has been previously decided. See State v. Dennis, 318 Ark. 80, 883 S.W.2d 811 (1994); Neely v. State; 317 Ark. 312, 877 S.W.2d 589 (1993). The trial court undoubtedly did not have the benefit of our decision in Neely v. State, supra, when he rendered his decision. The Neely decision addresses this same issue and was handed down on the same date as the sentencing hearing held in this case.

In Dennis, this court stated that the “law in effect at the time of the commission of a crime applies to determine the sentence to be imposed.” 318 Ark. at 82, 883 S.W.2d at 812. This court also held in both Dennis and Neely that the General Assembly intended Acts 532 and 550 of 1993, codified at Ark. Code Ann. § 5-4-501 (Repl. 1993), which impose a ten year minimum sentence for habitual offenders with more than one but less than four felony convictions, to apply only to felonies committed after June 30, 1993.

In the case at hand, the charged crime to which Kinard pled guilty occurred on June 11, 1993, which is before the effective date of Acts 532 and 550. Hence, the trial court erred in applying the penalties under the amended Habitual Offender Act to this fact situation. Accordingly, we reverse the judgment in this case solely with respect to the improper sentence, and we remand the case for resentencing with instructions to sentence Kinard in accordance with Ark. Code Ann. § 5-4-501, as it existed on the date of the rape. As we have held in previous cases with analogous facts, a remand for resentencing does not violate the rule against double jeopardy. State v. Dennis, supra; State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).

Reversed and remanded.


author: Andree Layton Roaf, Justice.

text:
    Marvin ACKLIN v. STATE of Arkansas
    CR 94-1054
    896 S.W.2d 423
    Supreme Court of Arkansas
    Opinion delivered January 30, 1995
    [Rehearing denied April 10, 1995.]

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.

      Dudley, L, not participating. Per Curiam opinion not designated for publication.

   Andree Layton Roaf, Justice.

Appellant was tried and convicted of two counts of battery for the stabbing of his grandmother and ten-year-old cousin, and was sentenced as an habitual offender with four or more previous felony convictions. He received a sentence of forty years on each count. On appeal, appellant contends there was impermissible, purposeful discrimination by the state in the striking of a black male during jury selection. We do not reach the merits of appellant’s argument because of his failure to sufficiently abstract the record. We affirm.

Appellant’s argument rests on a claim of purposeful discrimination in the state’s selection of a jury. Specifically, he argues that the state’s challenge to a black male juror violated the rules pronounced in Batson v. Kentucky, 476 U.S. 79 (1986), which prohibits racial discrimination in the exercise of peremptory challenges, and J.E.B. v. Alabama, 114 S.Ct. 1419 (U.S. 1994), which extended Batson to include discrimination based on gender. Appellant contends that African American males should be considered a constitutionally cognizable group distinct from black people in general. Batson, supra.

When the challenge was made below, the state had struck the first black male to be questioned as a prospective juror. It was stated for the record that Acklin was also a black male. Acklin asserted that he objected to the strike on the basis of both race and gender. The state responded that while there were not yet any black males on the jury, black females had been seated and both sides had struck white men. The state asserted that Acklin had not made a prima facie case for purposeful discrimination as required by Batson, supra, and the state was, therefore, not required to give a racially or gender neutral explanation for the strike. See Gilland v. State, 318 Ark. 72, 883 S.W.2d 74 (1994). The trial court found that because there were already blacks on the jury, and the defense itself had stricken white men, no prima facie case had been made.

Without intending any comment on the soundness of appellant’s argument, we do not reach the merits because of the deficiency in appellant’s abstract.

The abstract in this case has failed to disclose any of the other details of voir dire necessary for us to determine whether a prima facie case had been made. A prima facie case may be established by: (1) showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, (2) demonstrating total or seriously disproportionate exclusion of blacks from the jury, or (3) showing a pattern of strikes, questions or statements by a prosecuting attorney during voir dire. Gilland, supra; Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990).

Here, the only passage abstracted from voir dire is the discussion of the one challenge argued on appeal. This passage tells us that the appellant is a black male, that the challenged juror was a black man, that there were black women on the jury at the time he was challenged, and that three white men had previously been peremptorily challenged by the defense. This information is insufficient to enable us to determine whether a prima facie case of purposeful discrimination has been made.

The abstracted colloquy, standing alone, does not tell us about the final makeup .of the jury nor does it provide any other relevant information required in making a prima facie determination. Our tests for determining whether there has been purposeful discrimination, by their nature, require something against which such facts can be viewed. The one peremptory strike of a black male, with no additional facts or context in which it can be evaluated, is not sufficient. Among the relevant facts needed to infer a discriminatory purpose are the racial composition of the final jury, Tucker v. State, supra; Wainwright v. State, supra; or the racial composition of the veniremen at the commencement of voir dire, Wainwright. Such facts are not before us in the abstract. Nor do we have information from which to determine if there has been a pattern of strikes, questions or statements by the prosecutor; or that there has been a total or seriously disproportionate exclusion of the group from the jury. See e.g. Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991) where we said:

[Voir dire was excluded from the record on appeal], thus we are deprived of that critical portion of the trial proceedings which would enable us to consider “all relevant circumstances” [Batson, 476 at 86-87] from which to determine how and why peremptory challenges were used or withheld, and whether the state’s explanations are race neutral and credible.

While we have found a situation where the exclusion of one juror is sufficient to raise a prima facie case, the exclusion of that juror was looked at, as with our other tests, not in isolation but within the context of additional facts. So in Mitchell v. State, 295 Ark.341, 750 S.W.2d 936 (1988), we held that when all members of the defendant’s minority race are excluded from the jury, it is not necessary to show exclusion of more than one juror of the defendant’s race to make a prima facie case. However, as with the other tests, the one strike is only significant when it is viewed within the context of other relevant facts, specifically, the exclusion from the jury of all members of the group. In the instant case, we have no such showing of the racial or gender makeup of the final jury.

Affirmed.


text:
    STATE of Arkansas v. Beatrice RODRIQUES
    CR 94-953
    891 S.W.2d 63
    Supreme Court of Arkansas
    Opinion delivered January 30, 1995

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellant.
    No brief filed.
   Andree Layton Roaf, Justice.

Appellant State of Arkansas brings this appeal pursuant to Ark. R. Crim. P. 36.10, contending that the “correct and uniform administration of the criminal law requires review by the Supreme Court.” Appellee Beatrice Louise Rodriques pled guilty to one count of delivery of a controlled substance and two counts of possession of a controlled substance with intent to deliver. She was sentenced as an habitual offender to ten years imprisonment. On appeal, the state submits that at the time the crimes were committed the mandatory minimum sentence was twenty years imprisonment. We find merit to the state’s argument and reverse and remand for resentencing.

On March 31, 1994, the state filed an amended felony information charging appellee with one count of delivery of a controlled substance (methamphetamine) and two counts of possession of a controlled substance (methamphetamine) with intent to deliver, for acts which she allegedly committed on April 5, 1993, April 14, 1993, and June 18, 1993. Rodriques was charged as an habitual offender having more than one but less than four prior felony convictions.

At the guilty plea hearing on May 4, 1994, the trial court found the appellee had two prior felony convictions. Over the state’s specific objection, the trial court informed Ms. Rodriques that the minimum possible sentence she could receive would be ten years imprisonment. Appellee Rodriques pled guilty to the three Class Y felonies, and admitted to having two prior felony convictions. The trial court accepted her guilty plea and postponed sentencing.

At the sentencing hearing on June 3, 1994, the state again objected to the ten year sentence recommendation and contended that the minimum sentence for an habitual offender should be twenty years imprisonment for each offense. Over the state’s objection, the trial court sentenced Ms. Rodriques to three concurrent ten year terms of imprisonment pursuant to a 1993 amendment to the habitual offender statute, section 7 of Act 550 of 1993.

We have consistently held that sentencing shall be in accordance with the statute in effect at the time of the commission of the crime. State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993). Accordingly, we find the issue presented was decided in Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994), where we interpreted Act 550 of 1993. See also State v. Dennis, 318 Ark. 80, 883 S.W.2d 811 (1994); State v. Murphy, supra. In the instant case, the sentencing hearing was held on June 3, 1994; therefore, the trial court did not have the benefit of the Neely decision which was not handed down until June 13, 1994. In Neely, we examined section 7 of Act 550 of 1993 which amended Ark. Code Ann. § 5-4-501 to lower the minimum sentences for habitual offenders. We found that section 7 of Act 550 was to become effective July 1, 1993, and that the General Assembly intended to apply the reduced sentencing guidelines to felonies committed after June 30, 1993. Although section 7 provided that it be applicable to a “felony committed after June 30, 1983,” we found the reference to 1983 to be a drafting error. The intent of the General Assembly was to apply section 7 only to crimes committed after June 30, 1993. Neely, supra.

In the instant case, appellee’s crimes were committed on April 5, 1993, April 14, 1993, and June 18, 1993. Because these offenses occurred prior to July 1, 1993, section 7 of Act 550 was not in effect, and the statutory minimum sentence for a defendant convicted of a Class Y felony, who had previously been convicted of more than one but less than four felonies, was a term of not less than twenty years. See Ark. Code Ann. § 5-4-501 (1987). Thus, the sentence imposed by the trial court was erroneous and we must reverse and remand.

In so doing, we direct the trial court to sentence appellee pursuant to the habitual offender statute as it existed on the date the appellee committed the crimes in question. See State v. Murphy, supra. Resentencing on remand is not prohibited by former jeopardy considerations. State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).

Reversed and remanded.


author: Per Curiam.

text:
    R. Robert BAILEY, and Ed H. Smith, Individually, and on Behalf of the Committee to Save Arkansas Jobs, Inc., and All Others Similarly Situated v. W.J. “Bill” McCUEN, Secretary of State Committee for a Safe Workplace, Intervenor

    94-951
    891 S.W.2d 797
    Supreme Court of Arkansas
    Opinion delivered January 30, 1995

      Friday, Eldredge & Clark, by: Robert S. Shafer, Paul B. Benham III, and Elizabeth Robben Murray, for petitioners.

      Winston Bryant, Att’y Gen., by: Melissa Rust, Asst. Att’y Gen., for respondent.
    No response by intervenor.
   Per Curiam.

Petitioners R. Robert Bailey and Ed H. Smith, Individually, and on behalf of the Committee to Save Arkansas Jobs, Inc., move for this court to reconsider the release of their bond for costs posted in this original action in the amount of $1,000. Their basis for the motion is that they were the prevailing parties in this matter, albeit on a legal issue unrelated to the master’s fact-finding hearing, and thus should incur no costs. See Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994). Petitioners acknowledge that respondent W.J. “Bill” McCuen, Secretary of State, is not subject to payment of costs because of sovereign immunity. Intervenor Committee for A Safe Workplace has not responded to petitioners’ original motion or its motion for reconsideration.

Presently pending in the nature of costs is a bill for $3,528 submitted by the master’s court reporter for transcription of the three-day hearing conducted by the master. The master, Judge Darrell Hickman, was appointed as a fact-finder by per curiam order of this court dated September 20, 1994. See Bailey v. McCuen, 318 Ark. 49, 884 S.W.2d 937 (1994), amended 318 Ark. 106, 884 S.W.2d 937 (1994). On that same date, the motion of Committee for A Safe Workplace for permission to intervene was granted. At the commencement of the hearing before the master, counsel for petitioners posted the bond for costs in the amount of $1,000.

The question to be resolved is who pays the reporter’s bill. Petitioners are correct that they prevailed, but an original action is unlike an appeal. The master’s hearing and the transcript of it were for the mutual benefit of petitioners and the intervenor. Our Supreme Court Rules contemplate this. Rule 6-5 refers to original actions and costs incurred by a master’s taking of evidence:

(b) Fact Finding. Evidence upon issues of fact will be taken by a master to be appointed by the Court. As a condition to the appointment of a master, the Court may require both parties to file a bond for costs to be approved by the Clerk. Upon the filing of the master’s findings, the parties shall file briefs as in other cases.

Our per curiam order appointing the master made specific reference to this rule and quoted from it, although it did not specifically direct at that time which parties must post bonds for costs. Nonetheless, the only reasonable conclusion is that the obligation be shared equally by the real parties in interest — the petitioners and the intervenor.

After being credited with the $1,000 bond amount for their share of the $3,528 reporter’s bill, petitioners are directed to pay $764 into the registry of this court. Likewise, intervenor Committee for A Safe Workplace is directed to pay into the registry of this court $1,764.

Glaze, J., dissents.

Corbin, J., concurs.

Roaf, J., not participating.


text:
    Ivan Floyd PIPKIN v. STATE of Arkansas
    CR 94-515
    892 S.W.2d 241
    Supreme Court of Arkansas
    Opinion delivered January 30, 1995

      A. Wayne Davis, for appellant.
    No response.
   Per Curiam.

On May 17, 1994, Ivan Floyd Pipkin appealed his conviction in the Stone County Circuit Court, Case No. 91-36, and lodged the record of trial in this court. On June 24, Pip-kin’s attorney, A. Wayne Davis, Little Rock, Arkansas, requested a seven-day clerk’s extension, making his brief due on July 5, 1994.

On June 27, 1994, Mr. Davis, by letter, confirmed the clerk’s extension and acknowledged that the appellant’s brief would be due on Tuesday, July 5, 1994. On October 27, 1994, our clerk, Mr. Steen, mailed a letter to Mr. Davis advising him that the records indicated that a brief had not been filed or tendered in the appellant’s behalf, nor had a further motion for an extension of time been granted. In addition, the clerk called for a response to his letter, to which Mr. Davis has not replied.

On November 21, 1994, we ordered Pipkin’s counsel, A. Wayne Davis, to appear in this court on Monday, December 5, 1994, to show cause why he should not be held in contempt for failing to file the abstract and brief. Mr. Davis appeared in person and pled not guilty asserting that he had a meritorious defense. As a result, this court appointed a Master to conduct hearings, during which Mr. Davis admitted he was the attorney of record and was solely responsible for filing a brief on behalf of Mr. Pip-kin in this court. At the time of the Master’s hearing, Mr. Davis announced that he had almost completed a brief on behalf of Mr. Pipkin, and that it would be tendered to the clerk on December 27, 1994.

By per curiam order dated January 9, 1995, we held Mr. Davis in contempt for failing to comply with this court’s directives to file a brief on behalf of his client, and in addition, we fined him $500.00.

The court has been informed by the clerk that Mr. Davis has yet to tender an abstract and brief in his client’s behalf and has failed to pay his fine to the court.

For these reasons, we set a hearing date on Monday, February 6, 1995, at 9:00 a.m. and direct Mr. Pipkin’s counsel, A. Wayne Davis, to appear and show cause why he should not be held in contempt for failing to file the abstract and brief in this case as well as pay his fine for contempt of court.

Glaze, J., not participating.


author: Robert H. Dudley, Justice. Robert L. Brown, Justice,

text:
    Robert Leo ROSSI v. Ethel Moore ROSSI
    94-703
    892 S.W.2d 246
    Supreme Court of Arkansas
    Opinion delivered February 6, 1995

      Crockett, Brown & Worsham, P.A., by: Robert J. Brown, for appellant.

      Howell, Trice & Hope, P.A., by: William H. Trice, III, for appellee.
   Robert H. Dudley, Justice.

The final order was entered in this divorce case on December 27, 1993. A notice of appeal was not filed with the clerk of the court that entered the judgment within thirty days. On April 8, 1994, more than ninety days after the entry of the final order, appellant filed a motion entitled “Rule 60 Motion to Correct Misprision by the Clerk.” In the motion, appellant admitted that he had not timely filed the notice with the chancery clerk, but asserted that his courier erroneously delivered the notice of appeal to the circuit clerk’s office on January 21, 1994. He asked the chancellor to enter a nunc pro tunc order providing that the notice was filed in the chancery court clerk’s office on January 21, 1994. After hearing evidence the chancellor denied the motion. Appellant first appeals from the chancellor’s ruling on his Rule 60 of the Arkansas Rules of Civil Procedure motion and second, upon condition that we reverse the ruling on the motion, attempts to appeal from the decree of divorce. We affirm the ruling on the Rule 60 motion and do not reach appellant’s arguments on the merits of his attempted appeal.

Rule 3(b) of the Arkansas Rules of Appellate Procedure provides that “[a]n appeal shall be taken by filing a notice of appeal with the clerk of the court which entered the judgment, decree, or order from which the appeal is taken.” Rule 4(a) provides that the notice of appeal “shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from,” with exceptions not applicable to this case. Appellant argues that he substantially complied with Rules 3 and 4. Substantial compliance is not sufficient. The failure to file a timely notice of appeal deprives the appellate court of jurisdiction. Reynolds v. Spotts, 286 Ark. 335, 692 S.W.2d 748 (1985). While it is true that some irregularities in the form of a timely notice of appeal do not deprive the appellate court of jurisdiction, the failure to give the notice in a timely manner is fatal to an appeal. Henderson Methodist Church v. Sewer Improvement Dist. No. 142, 294 Ark. 188, 741 S.W.2d 272 (1987). Here, the courier was an agent or employee of the attorney, and it was his fault that the notice of appeal was not timely filed with the clerk of the court that entered the judgment.

Appellant asks us to make an exception in this case because, he contends, a clerical error by the circuit clerk was the reason for his failure to timely give the notice of appeal to the chancery clerk, and, since it was the circuit clerk’s error, the chancellor erred in refusing to order that a notice of appeal be entered nunc pro tunc. The request for an exception in this case is without merit.

The error was not merely an error by the circuit clerk. It was an error by the attorney. Nunc pro tunc orders are not to correct errors by an attorney. It is the duty of the attorney, not of the clerk, to perfect an appeal. Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989). If we were to overrule the holding of Edwards, we would lessen the finality of judgments and bring about additional difficulties because one could not look at the record and determine whether a judgment was final.

Equally important, appellant asks us to hold that the chancellor erred in refusing to issue a nunc pro tunc order stating that the notice of appeal was timely filed in chancery court. Our standard of review in such cases is well settled.

At all events, the making or refusing of the order rested in the sound discretion of the lower court. Richardson v. State, 169 Ark. 167, 273 S.W. 367; Ward v. Magness, 75 Ark. 12, 86 S.W. 822; 30 Am. Jur. 868; and on appeal, we will not reverse the action of the lower court in refusing to make the order nunc pro tunc unless there was either a clear abuse of discretion, or no substantial legal evidence to support the ruling of the lower court. In Freeman on Judgments (5th Ed.), § 136, it is stated: “In considering the sufficiency of the evidence to sustain an order directing or refusing to direct a nunc pro tunc entry, an appellate court will follow the usual rule governing review of questions of fact and will not disturb the ruling below if it is sustained by any substantial evidence.”

Mitchell v. The Federal Land Bank, 206 Ark. 253, 260, 174 S.W.2d 671, 675-76 (1943).

The chancellor did not abuse her discretion in refusing to grant the nunc pro tunc order. A trial court is permitted to enter an order nunc pro tunc when the record is being made to reflect that which occurred but was not recorded due to a misprision of the clerk, but a court may not change the record to do that which should have been done but was not. Canal Ins. Co. v. Arney, 258 Ark. 893, 530 S.W.2d 178 (1975). Here, appellant did not file a notice of appeal with the chancery court clerk within the time allowed, and the chancellor so found. The chancellor even went so far as to state that if appellant had given the court reporter a copy of the notice of appeal within the thirty-day period she might be able to afford relief, but appellant had not timely given the court reporter a copy of the notice of appeal. Under these facts, the chancellor ruled that she could not change the record to do that which should have been done but, in truth, was not done. The chancellor did not abuse her discretion in the ruling. To hold otherwise would require a holding that the chancellor abused her considerable discretion because she did not change the record to reflect something was done when, in truth, it was not done.

Affirmed.

Holt, C.J. and Brown, J., dissent.

Roaf, J., not participating.

Robert L. Brown, Justice,

dissenting. The majority has decided that Robert Rossi’s notice of appeal was untimely filed. The majority concludes that although the notice was filed within thirty days of the decree in the correct county, it was filed in the circuit clerk’s office and never received in the chancery clerk’s office within the required time period. Because this obvious inadvertence could have been corrected had standard courthouse procedures been followed, I would deem the notice timely filed. To do otherwise is to penalize a party, even when clerical error is partially the reason for the defect.

At the hearing on this matter, Susan Inmon, then supervisor of the Civil-Criminal Department of the Pulaski County Circuit Clerk’s Office testified:

COUNSEL: Okay. And how long have you had that position?
INMON: I have been with the office for ten years. I have supervised for about four.
COUNSEL: So, you are well qualified to give an opinion as to the custom and practice or to testify as to the custom and practice in the Circuit Clerk’s Office?
INMON: Yes.
COUNSEL: Okay. And what is the standard procedure for instances in which you have a Chancery Court filing that is inadvertently submitted and accepted by the Circuit Clerk for filing?
INMON: Well, procedurally we will file mark the document as it comes across the counter, place it in a basket and then the clerks will enter it the following morning.
This particular case, the file number is not one of our cases. In fact it is a closed case so the clerks couldn’t even enter it into our system. And when we do realize we have received a Chancery or another Court’s filing, particularly Chancery, we will “X” out our file mark on the original, send it through the county’s courier to the Chancery Clerk’s Office.
COUNSEL: Okay. That would be directly — I guess downstairs, well, around the corner?
INMON: Right.
COUNSEL: So, in all — in your standard procedure it would be, what, the day after the filing —
INMON: It would be the following day.
COUNSEL: — in which you would transfer that document to the Chancery Court’s Office. Is there any instructions that you know of that are given to the Chancery Court Clerk?
INMON: No. It is placed in a manila envelope or an envelope and just Chancery is written across it and it is placed in the pick up box for the county courier.
COUNSEL: Okay. And the filing date essentially speaks for itself? It just tells the Chancery Court Clerk when it was filed?
INMON: Well, we “X” out our filing date because it is not filed in our office.
COUNSEL: Okay. Does this happen with any degree of frequency?
INMON: It happens occasionally and it happens in the Chancery Clerk’s Office because they will forward us documents that were inadvertently filed there.

This case is sufficiently analogous to the circumstances of Linder v. Howard, 296 Ark. 414, 757 S.W.2d 549 (1988) for that case to be precedent. In Linder, the plaintiff filed her complaint arising out of a car accident in the chancery clerk’s office one day before the statute of limitations was to run. After the limitations period ran, the mistake was caught, and the transfer to the circuit clerk’s office was made. The defendant moved for summary judgment on the limitations issue, and the circuit court granted the motion. We reversed on appeal on the basis that Ark. Code Ann. § 16-57-104(a) (1987) contemplates a transfer to the proper docket when erroneous filings are made. Hence, the statute of limitations was tolled by the inadvertent commencement of the action in chancery court.

In the case before us, Rule 60(a) of the Rules of Civil Procedure reads:

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

It was clearly a mistake for the courier service to file the notice of appeal with the circuit clerk. But it was also a clerical mistake to log the notice of the appeal in that court. It was further a clerical mistake to “X” out the file mark and void the filing without notifying appellant’s counsel. It was, finally, a mistake for courthouse procedures not to have been followed to rectify the mistake. The notice should immediately have been transferred to chancery court in accordance with the established practice testified to by Ms. Inmon. Rather than that occurring, somehow the “X’ed out” version of the notice of appeal appeared on the court reporter’s desk after the 30-day period had run.

Other jurisdictions have avoided the harshness of the result reached in this case. See, e.g., Alfonso v. Dept of Environmental Regulation, 616 So.2d 44 (Fla. 1993); People v. Greathouse, 742 P.2d 334 (Colo. 1987). In Alfonso, the Florida Supreme Court retreated from prior caselaw and held that a notice of appeal filed in the court of appeals rather than the trial court, though the wrong court, appropriately invoked appellate jurisdiction. The Supreme Court directed that the notice of appeal be transferred to the correct clerk with the date of filing being the date the document was filed in the wrong court.

Appellate courts have not dismissed appeals even when the notice of appeal was mistakenly filed in the wrong county (Sinicropi v. Town of Indian Lake, 538 N.Y.S.2d 380 (A.D. 3 Dept 1989)), or when the court clerk erroneously filed and docketed a notice of appeal filed in the wrong division of that court (In Re Estate of Tague, 514 N.E.2d 910 (Ohio App. 1986)) or, again, when the notice was filed in the appellate court rather than the trial court (Resolution Trust Corp. v. Foust, 869 P.2d 183 (Ariz. App. Div. 1 1993)).

This is not a case, however, where the party filed a notice of appeal in the appellate court rather than the trial court. It is a case where the party correctly filed in the trial court, but in the wrong trial court, and courthouse procedures were not followed to remedy the mistake. The case is most analogous to the facts of In Re Estate of Tague, supra, where the appellate court looked to clerical error to reach the correct result.

The majority avoids the fairness issue that permeates this case when it hinges its decision on the movant’s mention of nunc pro tunc relief in his motion. Neither party argues that issue on appeal. And what the movant clearly requested from the court was that the notice of appeal be placed of record in the chancery case and considered as timely filed. The chancery court considered the motion in that vein and made no mention of a nunc pro tunc problem in its order. Rather, the court’s decision was premised on the appellant’s failure to comply substantially with the Appellate Rules and because of insufficient proof. The court stated:

1. The Notice of Appeal and Designation of Record has not been filed with the Pulaski County Chancery Clerk.
2. The subject Notice of Appeal and Designation of Record was not received by this Court until after the time for its filing had run.
3. The Defendant failed to substantially comply with the Rules of Appellate Procedure.
4. The Defendant failed to present sufficient proof that there was a clerical misprision.
5. For the foregoing reasons, the Defendant’s Motion is hereby denied.

In this matter, it is all too clear that a clerical misprision occurred. Because of the uncontroverted facts, the decision in this case turns on the question of whether a blind adherence to Ark. R. App. P. 3(b) is appropriate under these facts. I do not believe that it is. We should treat the error in this case, which was the shared responsibility of several parties, for what it was — an inadvertence, a misprision, a technical defect — and reach the merits of this appeal.

I respectfully dissent.

Holt, C.J., joins.


author: David Newbern, Justice.

text:
    Carl Dermott ADAMS v. STATE of Arkansas
    CR 94-1030
    892 S.W.2d 455
    Supreme Court of Arkansas
    Opinion delivered February 6, 1995

      Harold W. Madden, for appellant.

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

The appellant, Carl Dermott Adams, was convicted as an habitual offender of three counts of terroristic act, two counts of second degree battery, and criminal attempt to commit capital murder. His sentences, which the Trial Court imposed to be served consecutively, total 154 years in prison. His points of appeal are that (1) the. evidence was insufficient to support the convictions, (2) the sentences should not be consecutive because 154 years imprisonment is cruel and unusual punishment, and (3) his conviction of terroristic act and attempted capital murder arising from the same incident violates the double jeopardy prohibition of the United States Constitution. We affirm the convictions because the record, as abstracted by Mr. Adams, does not support the arguments.

The charges against Mr. Adams resulted from allegations that he fired a rifle into two houses in a “drive by” type shooting. Two children sleeping in one of the houses struck by many bullets were very seriously injured. Two of the witnesses who positively identified Mr. Adams at the trial as the person who fired the rifle admitted they were crack users at the time of the offense. The third was a man with whom Mr. Adams had fought on the evening before the shooting. Mr. Adams presented alibi testimony.

To challenge the sufficiency of the evidence on appeal of a criminal conviction, one must have moved at the trial for a directed verdict at the close of the State’s evidence and at the close of all the evidence. Ark. R. Crim. R 36.21(b); Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992); Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992). The record on appeal is confined to that which is abstracted. Harris v. State, 303 Ark. 233, 795 S.W.2d 55 (1990). Mr. Adams’s abstract makes no reference to a directed verdict motion. We decline to consider the point.

The same is true with respect to Mr. Adams’s second and third points. There is nothing in his abstract to show an objection at trial on the ground that terroristic act and attempted capital murder convictions could not, on the basis of double jeopardy, result from one incident. Nor does Mr. Adams’s abstract show that any objection was made to the Trial Court on the ground that the consecutive sentences amounted to cruel and unusual punishment, although he now asks us to hold the sentences are barred by the Eighth Amendment. Even constitutional arguments must be raised before the Trial Court to be considered on appeal. Fuller v. State, 316 Ark. 341, 872 S.W.2d 54 (1994); Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).

Affirmed.


text:
    Wilma Beatrice GRIFFIN v. John R. WOODALL and Damon Martin Weir
    94-302
    892 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered February 6, 1995
    [Rehearing denied March 13, 1995.]

      Herby Branscum, Jr., for appellant.

      Laser, Wilson, Bufford & Watts, P.A., by: Brian Allen Brown and Alfred Angulo, Jr., for appellee Woodall.

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles and Roy Gene Sanders, for appellee Weir.

      Glaze, J., not participating.

   Donald L. Corbin, Justice.

Appellant, Wilma Beatrice Griffin, appeals a judgment of the Perry County Circuit Court entered pursuant to jury verdicts for separate appellees, John R. Woodall and Damon Martin Weir. Appellant filed a negligence suit against appellees for damages she alleged were caused by a rear-end collision occurring on Arkansas Highway 10 near the intersection of Southridge Drive in Little Rock on May 30, 1991. Following the verdicts, appellant moved for a new trial on two grounds: that the jury’s verdicts were clearly contrary to the preponderance of the evidence or contrary to the law and that a juror engaged in misconduct. As we are required to interpret ARCP Rule 59, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(3). We find no merit and affirm.

First, we consider appellant’s argument that the trial court should have granted a new trial because the verdict was contrary to the preponderance of the evidence or contrary to the law. On appeal, our test for reviewing a denial of a motion for new trial based on these grounds is whether there is substantial evidence to support the jury verdict. RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783, cert. denied, 112 S. Ct. 959 (1991). Substantial evidence is evidence of sufficient force to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond speculation or conjecture. Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994). In determining whether substantial evidence exists, we view the evidence in the light most favorable to the party on whose behalf the judgment was entered and give that party the benefit of all reasonable inferences permissible under the proof. Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992). In reviewing the evidence, we do not pass upon the weight and credibility of the evidence, as such determinations remain within the exclusive province of the jury. Id.; Hall, 318 Ark. 309, 885 S.W.2d 297.

Appellant argues the evidence established that appellees, who were driving separate vehicles, were negligent in failing to yield to a forward vehicle turning left and that appellant, a passenger in her vehicle driven by her husband, which had stopped to yield to the forward vehicle turning left, was not negligent in any respect. According to appellant, her vehicle was struck twice from the rear by appellee Woodall’s vehicle, once when Woodall failed to stop and again when appellee Weir’s vehicle struck the Woodall vehicle, thereby causing the Woodall vehicle to strike the Griffin vehicle again. Additionally, appellant argues the evidence established that she suffered injuries to her lower back and right leg as result of the accident and that she would require future surgical expenses in addition to her medical expenses and lost wages. In short, appellant claims the jury ignored the evidence as well as the law set forth by the trial court. Her argument is without merit.

Our review of the evidence reveals there is substantial evidence to support the two jury verdicts for the separate appellees. While appellant and both appellees may indeed have presented conflicting evidence in this case, it is up to the jury to resolve the conflicts and judge the weight and credibility of the evidence. Hall, 318 Ark. 309, 885 S.W.2d 297. Based on the evidence presented at trial, the jury could have concluded, without resorting to speculation or conjecture, that neither appellee acted unreasonably. Appellee Woodall testified that, as he approached the intersection, he saw the Griffin vehicle stopped ahead of him with no left turn signal illuminated, and that he came to a complete stop behind it. Appellee Weir testified that, as he approached the intersection, he observed the green traffic light and appellee Woodall’s vehicle in front of him still moving forward. Weir stated that as he looked away to check the color of the traffic light, Woodall’s vehicle stopped too suddenly for Weir to avoid rear-ending it, even when he applied his brake. Contrary to the Griffins’s testimony at trial, the two investigating officers testified that the Griffins did not report two impacts at the time of the accident and that if the Griffins had so reported, the officers would have adjusted their investigation of the accident accordingly and completed two accident reports.

Additionally, even assuming arguendo that the jury found one or both appellees acted unreasonably, based on the evidence presented at trial the jury could have concluded, without resorting to speculation or conjecture, that the negligence or the accident in question did not cause appellant’s injuries. Appellant testified that the accident caused her serious back and leg pain for which she sought treatment from five physicians. The records of her family doctor and internist revealed that appellant had a history of chronic low back pain since childhood. Her internist performed an MRI (nuclear magnetic resonance image) approximately one month after the accident which showed appellant had degenerative changes in her spine, but no herniated disk or nerve impingement. Eventually appellant underwent surgery on her back and ultimately sought treatment from Dr. Chakales, an orthopedic surgeon whose deposition was admitted at trial and read to the jury as a witness for appellant. Dr. Chakales stated he examined appellant approximately seven months after the accident and diagnosed her with a post-operative lumbar disk injury and a chronically pinched nerve in the back. Dr. Chakales testified on cross-examination that according to the notes in his file on appellant, she never reported to him or his staff that she endured two impacts in the accident; rather, she reported that she was stopped, that the truck behind her was stopped, and that a third truck rear-ended the second truck which rear-ended her. Also on cross-examination, he stated that although appellant never related any of her former back pain to him, he was aware of the prior records showing her degenerative problems. Dr. Chakales explained that degenerative problems are part of the normal aging process. Dr. Chakales also stated that although the accident appeared to be the precipitating cause of appellant’s pain based on the history she gave him, it was possible that someone who had not been in a similar accident could have pain similar to appellant’s.

In sum, based on the foregoing evidence, the jury could have judged the credibility of all the evidence, and concluded with reasonable certainty that appellant did not meet her burden of proving that the separate appellees acted unreasonably or that they caused her injuries. The evidence is therefore substantial evidence. We observe that where the verdict is rendered against the party having the burden of proof, a literal application of the rule that the verdict must be supported by substantial evidence is untenable, as that party may have introduced little or no proof. Hall, 318 Ark. 309, 885 S.W.2d 297. We also observe that the jury was properly instructed on the law of negligence, including an instruction that an accident may occur in the absence of negligence. The trial court did not err in summarily denying the motion for new trial as the verdicts were supported by substantial evidence and not contrary to the law.

We turn to consideration of appellant’s argument that the trial court should have granted a new trial based on the alleged misconduct of the jury foreperson, Veronica Allen. Appellant contends Allen failed to disclose that she had previously been a party to a lawsuit in 1980 in which appellant’s counsel was the opposing counsel. Appellant contends she would have sought exclusion of Allen, either for cause or by peremptory strike, had Allen disclosed her involvement opposite appellant’s counsel. Appellant’s counsel did not recognize Allen, as her name had changed from Vicky Stone to Veronica Allen and more than ten years had passed since the suit.

When a party requests a new trial because of juror misconduct, the moving party bears the burden of proving that a reasonable possibility of prejudice resulted from the alleged misconduct. St. Louis S.W. Ry. v. White, 302 Ark. 193, 788 S.W.2d 483 (1990). Prejudice is not presumed in this regard. Id. We will not reverse the trial court’s denial of a request for new trial on grounds of juror misconduct absent a manifest abuse of the trial court’s discretion. Id.

We find no abuse of discretion in this case. Appellant has not proven any misconduct on Allen’s part. Although the record does not include the questions asked by the trial court during voir dire, it does reveal that counsel for appellee Weir asked the jurors if they knew counsel for appellant. Allen responded that she knew appellant’s counsel casually. No follow-up questions were asked of Allen concerning her response or her knowledge of appellant’s counsel. Later, however, the record reveals that no jurors responded when Weir’s counsel asked if they or their families had been represented by appellant’s counsel. Nonetheless, on this record, given Allen’s admission to knowing appellant’s counsel, we cannot say Allen deliberately failed to disclose any prior association with appellant’s counsel. See Pineview Farms, Inc. v. A.O. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989) (emphasizing no deliberate failure by juror to disclose information); see also B.&J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984) (distinguishing lack of deliberate failure to disclose information from obviously deliberate failure to disclose in Hot Springs St. Ry. v. Adams, 216 Ark. 506, 226 S.W.2d 354 (1950)).

Moreover, appellant did not meet her burden of proving a reasonable possibility of prejudice. In an affidavit attached to appellee Woodall’s response to the motion for new trial, Allen stated that, once her memory had been refreshed by appellant’s motion for new trial, she recalled the 1980 litigation, but that she had no ill will toward appellant’s counsel as a result thereof. She also stated she had recalled that her present husband had hired appellant’s counsel regarding an abstract for the transfer of some land since the 1980 litigation. Additionally, Allen stated that she would in all likelihood hire appellant’s counsel in the future should she need an attorney and that she had been an impartial juror. Based on these statements, appellant has not demonstrated any possibility of prejudice. Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993); White, 302 Ark. 193, 788 S.W.2d 483.

Appellant alleges further misconduct on Allen’s part in that after the jury had been sworn, appellant’s husband witnessed Allen engaging in a discussion with a panel member who appellant had excused from service. Appellant did not raise any objection below to Allen’s conversation with the panel member who had been struck. Therefore, appellant has waived this particular argument on appeal. Hughes v. State, 303 Ark. 340, 797 S.W.2d 419 (1990).

There is substantial evidence to support the jury’s verdicts and the verdicts are not contrary to the law. There was no abuse of discretion in the denial of the motion for new trial based on juror misconduct. The trial court did not err in denying the motion for new trial.

The judgment is affirmed.

Glaze, J., not participating.


author: Robert L. Brown, Justice.

text:
    Frank Gordon BOYLE v. A.W.A., INC., Formerly U.R.G., Inc. Richard Andrew Wagner Cross-appellant
    94-712
    892 S.W.2d 242
    Supreme Court of Arkansas
    Opinion delivered February 6, 1995

      Joe Hardegree, P.A., for appellant.

      Gregg, Hart & Farris, by: John, C. Gregg, for appellee.

      Kinney & Snowden, by: William G. Snowden, for cross-appellant.
   Robert L. Brown, Justice.

Appellant Frank Gordon Boyle appeals a foreclosure decree which grants appellee A.W.A., Inc., formerly U.R.G., Inc., judgment against cross-appellant Richard Andrew Wagner and orders a foreclosure sale of his one-half interest in land located in Izard County. After the parties’ briefs were filed, A.W.A. filed a motion to strike Wagner’s brief, which was filed on the same date as A.W.A.’s brief in response, on grounds that Wagner was not a true cross-appellant but rather had aligned himself with the positions taken in appellant Boyle’s brief. A.W.A. further contended that it did not have an opportunity to respond to Wagner’s brief. This court determined that it would decide A.W.A.’s motion at the time that the case was submitted.

On February 25, 1976, Frank and Jessie Boyle deeded four tracts of land in Izard County to their two sons, Gordon Boyle and Richard Wagner, as co-trustees of the Boyle Trust. The beneficiaries of the trust under the Trust Indenture establishing the Boyle Trust were the settlors, Frank and Jessie Boyle. The Trust Indenture provided that the net income from the land would be paid to Frank and Jessie Boyle or to their survivor for life and that upon the death of both the trust would terminate and the land would be distributed to the two sons “free from trust.” The Trust Indenture also contained a spendthrift clause against the voluntary and involuntary alienation of the land by trust beneficiaries. Frank Boyle died in 1981. Jessie Boyle died on July 12, 1991. Her will acknowledged the Boyle Trust and verified the fact that under the trust the Izard County land would vest equally in her two sons upon her death.

In 1983, Richard Wagner and Gordon Boyle executed a promissory note in favor of A.W.A.’s predecessor, U.R.G., in the amount of $320,000. In 1987, Wagner and his wife executed a Note Modification Agreement in the amount of $325,000 in favor of U.R.G. and granted it a mortgage in the Izard County real property. Wagner defaulted on the promissory note, and in 1993 U.R.G.’s successor, A.W.A., filed a complaint in foreclosure on the Izard County tracts naming Wagner and his spouse, as well as Gordon Boyle and his spouse, as defendants. After A.W.A. filed an amended complaint, Boyle counterclaimed against A.W.A. and sought to nullify any mortgage on the land due to the spendthrift trust and due to the fact that, at the time of the mortgage, Wagner had no beneficial interest in the land. Boyle further cross-claimed against Wagner to remove him as co-trustee of the Boyle Trust, which Boyle contended was still in existence.

Boyle, Wagner, and A.W.A. all moved for summary judgment. The trial court denied the motions of Boyle and Wagner but granted A.W.A.’s motion and entered its foreclosure decree on April 4, 1994. In that decree, the court found that the Boyle Trust terminated upon Jessie Boyle’s death on July 12, 1991, and that title to the Izard County land vested absolutely in Gordon Boyle and Richard Wagner on that date with each receiving an undivided one-half interest. The court ordered that Wagner’s one-half interest in the land be sold in satisfaction of the A.W.A. debt.

We first address the issue of Wagner’s brief filed as cross-appellant. The foreclosure decree was entered in this matter on April 4, 1994. Gordon Boyle filed his notice of appeal on April 14, 1994. Richard Wagner filed his notice of cross-appeal on May 3, 1994. A cross-appeal, typically, is an appeal by the appellee who seeks something more than was received in the trial court. Black’s Law Dictionary, p. 375 (6th Ed. 1990); Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991). It must be filed within 10 days of that first notice of appeal except that it may be filed at any time within 30 days from the date of the decree which is the subject of the appeal. Ark. R. App. P. 4(a). Wagner’s notice of cross-appeal was timely filed under our rule.

In reading Wagner’s brief on appeal, however, it is clear that far from assuming the posture of appellee or contesting any decision in favor of his brother, appellant Boyle, he associates himself with the arguments made by appellant Boyle. He, thus, occupies the status of an appellant irrespective of how he styled himself in either his notice of appeal or on the cover of his brief. He failed to file his brief in timely fashion as an appellant but filed his brief on the same date that A.W.A.’s brief as the appellee was recorded. A.W.A., as a consequence, had no opportunity to respond to Wagner’s arguments. This was inherently unfair to A.W.A., especially when Wagner was embracing the same positions as the appellant. We conclude that Wagner’s brief was not timely filed, and we strike it.

We turn next to Boyle’s first point on appeal that the trial court erred in finding that the Boyle Trust terminated upon the death of Jessie Boyle. We discern no error in the court’s finding. The terms of the Trust are clear and precise in stating that upon the death of the parents the trust would terminate and that the land would be distributed to the two sons “free from trust:”

ITEM VI. The original trust created by this instrument shall terminate upon the death of the survivor of the Grantors and all property of said trust shall, subject to the limitations in Item VII below, then be distributed to Grantors’ children, Frank Gordon Boyle and Richard Andrew Wagner, free from trust, and in the event that either of said children is not then living, then to his or her descendants, per stirpes.

Jessie Boyle’s will further recognizes and verifies that fact and speaks in terms of the land’s vesting in her sons at her death, which occurred on July 12, 1991:

For the purpose of verifying the same, I specifically recognize the inter vivos trust previously executed by me and by my husband, Frank Betts Boyle, covering certain real property situated in the State of Arkansas, wherein the said FRANK GORDON BOYLE and RICHARD ANDREW WAGNER are equal beneficiaries following the deaths of my husband and myself. I now confirm that my interest in those properties in the State of Arkansas which are so specifically described in the trust instrument will in fact vest at my death in such sons, according to the trust provisions.

We do not view Jessie Boyle’s use of the term “beneficiaries” in her will as proof that the trust should continue after her death, as Boyle contends. On the contrary, she referred to the fact that the trust provisions would control and that the land would vest in her sons on the date of her death according to the trust. The trial court correctly found that on that date the trust terminated, and each son took an undivided one-half interest in the property as a tenant in common. Prior to that date, the sons’ respective interests in the land had not vested but were merely contingent upon their surviving their mother.

Boyle next urges that the trial court erred in failing to enforce the spendthrift clause in the Boyle Trust which, according to Boyle, would void A.W.A.’s mortgage on Wagner’s land. We disagree. Boyle has no standing to raise an issue regarding Wagner’s property in which he has no interest. See Insurance from CNA v. Keene Corp., 310 Ark. 605, 839 S.W.2d 199 (1992). Further, it is only when a person is definitely aggrieved that there can be an appeal. Arkansas State Highway Comm’n v. Perrin, 302 Ark. 240, 399 S.W.2d 287 (1966); Beard v. Beard, 207 Ark. 863, 183 S.W.2d 44 (1944); First National Bank v. Yancy, 36 Ark. App. 224, 826 S.W.2d 287 (1991). The foreclosure decree specifies that A.W.A.’s rights as a creditor only pertain to Wagner’s one-half interest in the land, and Boyle has failed to show us on appeal what his interest in Wagner’s one-half interest in the land might be. But there are additional reasons to sustain the trial court’s finding on this issue. The Boyle Trust terminated at Jessie Boyle’s death in 1991, and the land did not vest in Wagner until that point. Accordingly, Wagner possessed no interest as a beneficiary in the land in 1987 which would subject him to the spendthrift clause at the time he mortgaged the land. It was only upon the termination of the trust in 1991 when Wagner received a vested one-half interest in the land that the mortgage attached under the doctrine of after-acquired property. See Ark. Code Ann. § 18-12-601 (1987); Stone v. Morris, 177 Ark. 745, 7 S.W.2d 796 (1928); Kline v. Ragland, 47 Ark. 111, 14 S.W. 474 (1886). Even if he had had some beneficial interest in the land in 1987, there is also the fact that the spendthrift clause in the Trust Indenture states that it had no application once the trust ended:

Moreover, the foregoing provisions of this Section B [Spendthrift Clause] shall cease to apply to the remaindermen of any trust created by this instrument on the date when the trust in which they are interested terminates pursuant to other provisions of this instrument.

In sum, Boyle’s second point has no reasonable foundation to support it.

For his final point, Boyle urges that had he or his mother known about Wagner’s mortgage of the land to A.W.A.’s predecessor in 1987, they might have taken some remedial action to void it. He urges that the trial court did not take this factor into consideration in its decree when it found that no one questioned the validity of the mortgage before the Boyle Trust terminated in 1991. We give this point little credence for reasons already stated. Wagner was not a trust beneficiary in 1987 and, hence, the spendthrift clause had no application to him. And, again, Boyle appears to have no standing to raise this point because his interest in the land to be foreclosed is not affected by the trial court’s decree. See Insurance from CNA v. Keene Corp., supra. We conclude that there is no basis for reversing the trial court on this point.

Motion to Strike Cross-Appellant’s brief is granted.

Affirmed.

       The Trust Indenture did provide that the trust would continue lor beneficiaries under age 30, but both Boyle and Wagner had exceeded that age.