author: John I. Purtle, Justice.

text:
    David J. POTTER v. Betty POTTER
    82-260
    655 S.W.2d 382
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983
    [Rehearing denied September 19, 1983.]

      Mitchell, Williams, Selig, Jackson é

       Tucker, by: Jim Guy Tucker, for appellant.

      Smith, Jernigan ir Smith, by: Robert D. Smith, III and H. Vann Smith, for appellee.

         Mills Heirs v. Wylie, 250 Ark. 703, 466 S.W.2d 937 (1971).

   John I. Purtle, Justice.

After a long and complicated trial the chancellor granted a divorce to the appellee and dismissed appellant’s counterclaim for divorce. The court also divided the property in a manner which is not satisfactory to either party. Several post-trial motions for modification and/or clarification were filed by the parties. The last motion was disposed of on April 6, 1982, and on April 9, 1982, the appellant gave notice of appeal. He argues 10 grounds for reversal. The different points argued will be paraphrased and set out below. The decree will be affirmed with certain modifications.

The parties to this action were married April 9, 1971. Three children issued from the marriage. Final separation occurred in June of 1980. Appellant is an attorney in Texarkana and appellee is a school teacher. The present action was initiated by the appellee when she filed her complaint for divorce on April 17,1980. The complaint was subsequently amended and the case was presented to the chancellor (sitting by exchange) on the merits of the different parties. The decree granted custody of the three minor children to the appellee subject to liberal and reasonable visitation rights being vested in the appellant. The decree also ordered the appellant to pay $650 per month child support and denied any alimony to the appellee. During the hearing on December 8, 1980, wherein the appellant’s motion for temporary relief was heard the court discovered there was an agreement between the parties that required cessation of acquisition of marital property and debts as of June 30,1980. It was agreed to between the parties that June 30, 1980 would be the date used for accounting of properties and debt at the final hearing. The court indicated the agreement between the parties would be recognized and approved by the court.

The long and complicated facts relating to the disposition will be set out as the points are discussed.

I

THE COURT ERRED IN AWARDING A DIVORCE

TO THE APPELLEE INSTEAD OF THE APPELLANT.

Each of the parties denied the existence of any grounds for divorce on the other party’s part. On the other hand each claimed they were the injured party and were entitled to a divorce. In the present case we look only to see if there was sufficient evidence to support the court’s decree granting the appellee a divorce. The appellee testified to grounds which would warrant granting her a divorce. The question presented is whether the appellee’s allegations were corroborated. We have held in the past that when both parties sue for divorce, slight corroboration will support a chancellor’s granting a divorce to one of the parties. In Lockley v. Lockley, 257 Ark. 603, 519 S.W.2d 52 (1975), this court made the statement:

Of course, we have said numerous times, so numerous as to require no citation of authority, that corroboration in contested divorces need only be slight.

One witness testified that the appellant frequently kidded and joked with the appellee and that this appeared to embarrass her. The witness stated that appellee’s mood changed for the worse whenever appellant appeared. Appellee testified that on one occasion appellant, while at the country club, teased her about her inability to keep a check book balanced. Another witness stated that appellant made remarks with other people present that he was going to give appellee a birthday party and invite maladjusteds and misfits in town to the party. There was also evidence of a number of heated arguments between the two. Therefore, we feel there is the necessary corroboration and in view of the fact that each party sought a divorce we do not find prejudicial error in the chancellor’s awarding a divorce to the appellee.

II

THE TRIAL COURT ERRED IN FAILING TO ADJUDICATE MARITAL PROPERTY AND DEBTS AS OF JUNE 30, 1980.

The appellant argues that an agreement between the parties whereby marital property and debts would be determined as they existed on June 30, 1980 was controlling but not recognized by the chancellor at the final hearing. During this period of time the appellee incurred debts in appellant’s name in the amount of $16,786.68. These debts included purchases and payments on behalf of both parties and the children. After December 8, 1980 (the date of the hearing on temporary support and allowances) the court entered a temporary order requiring appellant to pay the appellee $850 per month. During this time the appellee was allowed to live in the home at 1905 East 18th in Texarkana. Matters heard on December 8, 1980 were considered in the final hearing in this case. There was no dispute about the amount of the expenditures during the period of June 30 through December 8, 1980. The record clearly reveals that no order had been issued by the court prior to December 8, 1980. During the period of time between June 30 and December 8, 1980, the appellee received $2,250 by check from the appellant. She also incurred $512 for part of the expense of a vacation which she took in Florida. During this same period of time payments on the home were made in the amount of $2,302.68. Some of the other expenses incurred during this time were paid by the appellant in order to protect his credit. The expenditures included ordinary expenses of running a household, an automobile and keeping up membership at the country club. During this five and one-half month period the appellant paid no alimony or support as such. Considering the foregoing, we think the chancellor erred in not allowing appellant credit for the $2,250 cash advanced to the appellee during this time as well as the $512 she spent in Florida. He should also have received credit for one-half of the house payments which amount totals $1,151.34. The credits allowable to him would thus come to $3,913.34.

Ill

THE COURT ERRED IN AWARDING APPELLEE A GRAND PIANO AS HER SEPARATE PROPERTY.

A grand piano, which appellant purchased for $6,000, was picked out by him and the children and transported to the home on Christmas Eve, 1979. Certainly these circumstances are in keeping with the idea that the piano was a gift to appellee. The trial court heard the parties and we generally adhere to its decision in the matter of credibility of witnesses. ARCP, Rule 52. We do this because the trial court is in a better position than this court to evaluate the credibility of the witnesses. It is not error to award the piano to the appellee as a gift from the appellant thereby creating separate property.

IV

THE COURT ERRED IN DETERMINING THAT CERTAIN FEES WHICH THE APPELLANT HAD EARNED, WERE MARITAL PROPERTY.

Several fees are involved in this controversy. The first one is the fee in the Mills case. The appellant had done practically all of the work on this fee prior to the time of his marriage to the appellant on April 9, 1971. The fee in the Mills case was contingent and was not payable until after the Arkansas Supreme Court handed down a decision on May 17, 1971. The fee and reimbursement costs amounted to $19,345.71. A portion of these funds was used to purchase 2.066 acres of land, whereon the parties subsequently constructed their dwelling house, the rest going to the purchase of a one-half interest in a 5.8 acre tract. Although the funds were traceable, the trial court held that the fee did not accrue until after the marriage. He then held that these two parcels of land were marital assets.

Other fees involved in this controversy (Right, Hodges, McMillin-Burkett and Cameron) were earned during the marriage but were set up in trust funds in order to be paid out over a period of time. The court also held that these other fees were marital property and should be divided between parties. In addition there was an individual retirement account in appellant’s name, which had been created during the marriage. The court also held this fund to be marital property.

It is appellant’s contention that either the Mills fee or the other fees and the IRA should be treated as his separate property. Ark. Stat. Ann. § 34-1214 (Supp. 1981) controls the division of the property in this case. The statute states that all marital property shall be divided equally unless the court finds such a division to be inequitable, in which case the court shall make an equitable distribution. All other property shall be returned to the party who owned it prior to marriage unless the court shall make some other division that the court deems equitable. If the court fails to return the property to the party who owned it at the time of the marriage it must state in writing its basis and reasons for not doing so. Property is not deemed marital if it is acquired by gift, bequest, devise or descent; or is acquired in exchange for such property. Also, property is excluded from being classified as marital property if the parties exclude it by valid agreement. Property acquired by either spouse during the marriage carries the presumption of being marital property. The date of the acquisition is the key factor. Property acquired separately or jointly remains as such and must be divided accordingly at the time of divorce, unless the court finds it is not equitable. In some community property states there is a rebuttable presumption that property acquired during the marriage is community property even though it is taken solely in the name of one of the parties. Thomasset v. Thomasset, 122 Cal. App. 2d 116 (1954); Fountain v. Maxim, 210 Cal. 48 (1930). Thomasset held that separate funds remained separate unless it became impossible to trace the source of the funds. This is true even if separate funds were commingled with other funds in a common account.

The Supreme Court of New Jersey held that the earning capacity of a lawyer was not a marital asset but could be considered by the trial court in determining an “equitable” distribution of marital assets. Stern v. Stern, 66 N.J. 340 (1975). The New Jersey court also determined that accounts receivable were properly considered assets but should be reduced by accounts payable. In Stern it was further stated that the trial court should consider tax consequences in making an equitable distribution of marital assets. Our court has held that a wife may be entitled to one-half of her husband’s vested interest in a trust or pension plan. Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981). We held that a trust agreement and a money-purchase pension plan were fully vested and therefore were properly considered marital property. Property such as future retirement and pension benefits is not marital property because it has not yet been acquired. Paulsen v. Paulsen, 269 Ark. 523, 601 S.W.2d 873 (1980); Bachman v. Bachman, supra.

We find that the court properly found the Mills fee to be marital property because it was acquired during the marriage. The IRA account is not fully distributable and was established with funds earned by the appellant, therefore, it was not proper for the trial court to treat it as marital property. In Stout v. Stout, 4 Ark. App. 266, 630 S.W.2d 53 (1982) the Arkansas Court of Appeals affirmed the trial court in holding that an IRA account belonged to the party contributing the funds to the account. The fees which have not been collected have obviously not been acquired during the marriage and fall outside the definition of marital property as defined by Ark. Stat. Ann. § 34-1214 (Supp. 1981). In holding these fees not to be marital property we do not imply that any and all accounts receivable, fees, commissions or other property not in hand on the date of the divorce will be excluded from being considered marital property. If such delayed assets are in keeping with the usual course of business or conduct there is no reason to hold they are marital property. However, if there is evidence of fraud or other intent to delay receipt of such property in order to exclude it from consideration at the time of divorce it may well be equitable to treat it as having been acquired during the marriage. Therefore, we are of the opinion that the trial court was in error, in that the IRA account and the fees which have not been collected are not marital property but are the separate property of appellant.

V

THE COURT ERRED IN REFUSING TO TRACE SEPARATE PROPERTY OF THE APPELLANT INTO CERTAIN TRACTS OF REAL ESTATE.

Tracing has been discussed to some extent under the last argument. We are persuaded that the correct formula was used in Hancock Mutual Life Ins. Co. v. Bennett, 133 Tex. 450 (1939), where the court stated:

It is a well settled rule that property acquired for a consideration paid in part out of community funds and in part out of separate funds of one of the spouses is in part community and in part separate property. The two estates own such property by way of a sort of tenancy in common.

We think the appellant owns a separate interest in the lot and house in the amount of $9,656.08 which sum is directly traceable to the proceeds of the sale of his separate property owned prior to the marriage. Although Arkansas is not truly a community property state, Ark. Stat. Ann. § 34-1214 makes it so for all practical purposes when it is utilized in dissolution of marriage and distribution of assets. Both Texas and Maine have adopted the “acquired in exchange for” clause in their community property dissolution statutes. Hancock, supra, and Tibbetts v. Tibbetts, 406 A.2d 70 (Me. 1979).

VI

THE COURT ERRED IN GRANTING APPELLANT ONLY ONE-HALF OF THE PAYMENTS HE MADE ON THE HOUSE AFTER JUNE 30, 1980.

The court ordered the appellant to be repaid for one-half of the payments he had made on the property after June 30, 1980. We have already disposed of part of this argument by giving appellant credit for payments made during the period between June 30 and December 8, 1980. This is a mechanical procedure; we do not have the necessary figures before us to make a finding as to the exact amount owed after December 8, 1980. In fact, it appears that these payments were at least made through September of 1981 and are possibly continuing at this time. In any event we think appellant is entitled to recover one-half of the payments on the house, including taxes and insurance, from December 8, 1980 up until the date of the sale of the property.

VII

THE COURT ERRED IN DETERMINING THE VALUE OF APPELLEE’S MARITAL INTEREST IN THE HILLSIDE APARTMENTS.

The appellant is the owner of two-ninths interest in the Hillside Investment Company, a partnership. The principal asset of the partnership is the Hillside Apartments. The appellee presented evidence from an appraiser, and the court found that the value of the appellant’s recorded two-ninths interest amounted to $46,131.41. There was a debt against appellant’s ownership in the amount of $10,290. The appellant offered testimony that the business interest of the property had a market value of $14,631.49. It is not disputed that the two-ninths interest in the Hillside Investment Company is marital property. Appellant’s testimony concerning the net value of the equity in the Hillside Apartments was about $1,000 more than that of the appraiser for the appellee. The difference in the net valuations between the two is that appellant thought the value of the minority interest should be reduced by 25% whereas the court discounted the minority interest at the rate of 10%. This is a factual question and we are unable to say that the chancellor was clearly erroneous in his decision. In this case it is equitable to award appellee a money judgment for her interest in the marital property which is not susceptible to division or sale without causing both parties loss of equity.

VIII

THE COURT ERRED IN FINDING THAT APPELLEE’S INTEREST IN THE 5.8 ACRE TRACT OF LAND WAS VALUED AT $16,875.

Earlier in this opinion we held that the Mills fee was marital property. Therefore, the 5.8 acre tract is joint property. Although the appellant may be personally bound to accept $10,150 for his interest in this property the appellee is not bound because she did not consent or agree to the option. Her interest in the property is not limited to the option held by appellant’s friend and partner. The court considered appraisals and other facts in reaching his decision and we cannot say his decree is clearly erroneous. It was not error to find appellee’s interest to be valued at $16,875.

IX

THE COURT ERRED OR ABUSED ITS DISCRETION IN AWARDING ATTORNEY’S FEES AND OTHER EXPENSES.

Both parties recognize that it is a policy of this court to consider the matter of attorney’s fees and costs to be within the sound judicial discretion of the trial judge. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979). InLyi/cweheldthat it was not necessary that the trial judge hold a hearing on the amount of attorney’s fees because having presided over the proceeding he was familiar with the services rendered by the attorneys. See Pitcher v. Baltz, 242 Ark. 625, 414 S.W.2d 859 (1967). While the attorney’s fee is fairly liberal we do not find that the trial court abused its discretion.

X

THE COURT ERRED AND/OR ABUSED ITS DISCRETION IN AWARDING COSTS AND EXPENSES TO THE APPELLEE IN THE AMOUNT OF $2,811.20.

The expenses incurred and allowed by the trial court as costs included auto rental, air travel and motel charges for appellee’s attorney. They also included at least a portion of the costs of the discovery deposition incurred by the appellee. Costs for discovery depositions are not court costs. Long v. Henderson, 249 Ark. 367, 459 S.W.2d 542 (1970). Costs were not recoverable at common law. Jordan v. State, 102 Ark. 43, 143 S.W. 131 (1912). Therefore, only statutory costs and fees are allowed. We have considered these items of expense in approving the aforementioned attorney’s fees. The case is remanded to the trial court with directions to proceed in a manner not inconsistent with this opinion.

Adkisson, C.J., and Hickman, J., concur.

Hays, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Gerald Wayne STEELE v. STATE of Arkansas
    CR 83-78
    655 S.W.2d 381
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983

      Law Office of W. B. Putman, W. B. Putman and E. E. Maglothin, Jr., for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of second degree murder and sentenced to ten years in prison. During the jury trial appellant sought to cross examine a witness for the state about an alleged prior felony conviction. The trial court refused to allow the defense to ask about the alleged conviction because it had been expunged by the sentencing court. Appellant argues that the refusal to allow cross examination about the alleged conviction violated the provisions of Arkansas Uniform Rules of Evidence, Rule 609 (c), Ark. Stat. Ann. § 28-1001 (Repl. 1979). We believe the trial court made the correct determination.

The argument concerns the criminal record of a witness who was charged with possession of a controlled substance with intent to deliver and offered to plead guilty to the charge. The court took the plea under advisement for a period of three years and also assessed a fine of $1,000 against the witness. After three years the trial court entered an order of expungement of the offer to plead and the taking of the case under advisement. The order stated that LaFerney had met all the terms and conditions of the earlier order and had in fact been a model citizen. The order provided that all charges were dismissed.

The only point involved in this appeal is whether the refusal of the trial court to allow appellant to cross examine the witness about a prior felony conviction violated Uniform Evidence Rule 609 (c) which states:

(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

Edward Joe (Big Ed) LaFerney appeared as a witness for the state in the prosecution of appellant for causing the death of Gary Leon (Mad Dog) Martin. There is considerable disagreement between the parties as to whether the previous proceedings involving the witness amounted to a conviction. This argument overlooks the fact that it makes no difference whether these proceedings amounted to a conviction. Rule 609 (c) specifically deals with the admissibility of convictions which have been the subject of pardon, annulment, certificate of rehabilitation, or other equivalent procedures based on a finding of the rehabilitation of the person convicted and a further finding that such person has not been subsequently convicted of a felony.

This being the first interpretation of Rule 609 (c) as applied to a situation where a witness’s prior record has been expunged, we choose to give the rule its plain and ordinary meaning. Therefore, we hold that the trial court correctly ruled that the expungement of the prior proceedings, whether it was a conviction or not, rendered such record inadmissible. The trial court found that he had been rehabilitated prior to the entry of the order of expungement. Rule 609 (c) requires the court to refuse to allow a conviction which has been expunged, to be used for testing the credibility of a witness.

Affirmed.


author: Robert H. Dudley, Justice. Richard B. Adkisson, Chief Justice, Darrell Hickman, Justice,

text:
    MISSOURI PACIFIC RAILROAD COMPANY v. ARKANSAS SHERIFF’S BOYS’ RANCH et al
    82-201
    655 S.W.2d 389
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983
    [Rehearing denied September 19, 1983.]

      Herschel H. Friday and Phillip Malcom, for appellant.

      Tom Allen and Harkey, Walmsley, Belew & Blankenship, for appellees.

      Hickman, J., would grant rehearing.

   Robert H. Dudley, Justice.

Sixteen appellee landowners filed four separate complaints against appellant, Missouri Pacific Railroad Company, and 29 of its employees. The appellees alleged they were entitled to recover compensatory and punitive damages for losses suffered as a result of fires caused by the negligent maintenance of both the right-of-way and the rolling stock of the appellant railroad and by the deliberate and intentional acts of the employees in throwing fusees or flares into combustible materials. Over appellant’s objection, the four separate lawsuits were consolidated for trial.

Immediately prior to the trial the appellees nonsuited their punitive damage claims against each of the 29 employees but retained their punitive damage claim against the appellant railroad. During the trial a witness, who was not a party to these lawsuits, was allowed to testify that during settlement negotiations of a different claim an agent of the railroad stated that, in order to save money, the railroad has a policy of settling claims for fire damages rather than expending money to prevent the fires. The jury returned an award for compensatory damages totalling $6,100 for the four cases and an award for punitive damages totalling $800,000, or $200,000 for the appellees in each of the four cases. We reverse. Jurisdiction is in this Court pursuant to Rule 29(1) (o).

The appellant raises four points on appeal: two concern procedure prior to trial, one arises from an evidentiary ruling at trial, and one relates to the sufficiency of the evidence.

We first address appellant’s two assigned points of error concerning procedure. Appellant contends that the trial court committed procedural error in consolidating the four lawsuits for trial. We agree.

ARCP Rule 42 (a) provides:

Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delays.

An order of consolidation is a matter of discretion with the trial judge, and we will not reverse such an order except for abuse of that discretion.

The parties and facts in the four cases are as follows:

(1) One plaintiff sought compensatory and punitive damages against only the railroad for losses due to numerous fires alleged to have occurred over the past three years.
(2) Two different plaintiffs sought compensatory and punitive damages against the appellant and its train crew of 12 men for losses on their 270 acres of land due to fires on July 29, 1980 and August 27, 1980.
(3) Two different plaintiff property owners sought compensatory and punitive damages against appellant and its 15-man train crew, two of them who were also in the crew in case number (2), for losses on their ten acres which occurred on August 29, 1980 and April 10, 1981.
(4) Nine different property owners sought compensation and punitive damages against appellant and its 16-man crew, five of whom were also crew members in case number (2) and two of whom were crew members in case number (3), for losses on their 417 acres of land, which occurred on April 20, 1980.

Prior to making his decision the trial court heard arguments from the attorneys at a pretrial conference. The court anticipated that the proof would show that all the complaints arose along a six mile stretch of right-of-way. The trial judge anticipated that the main thrust of the lawsuits would be for punitive damages and that all plaintiffs would attempt to prove that the appellant had found it less expensive to pay damage claims than to control vegetation on the right-of-way along this six mile stretch.

In analyzing the issue, we have divided the cases into their component parts — compensatory damages and punitive damages. It is the consolidation of claims for punitive damages which causes us to reverse. First, we note that the consolidation complies literally with Rule 42 (a) if the language therein is taken literally, as there were common issues of fact and law in the claims for punitive damages. The consolidation also saved judicial time, and we are fully aware that, upon retrial,, each plaintiff will have to call nearly all of the same witnesses to establish the occurrence of most of the fires, that notice was given to the appellant, the condition of the right-of-way and rolling stock, and company policy. Even so, ordering the consolidation amounted to an abuse of discretion because of the resulting prejudice.

The consolidation of four cases placed undue emphasis on the need to penalize the tortfeasor. One of the objectives of punitive damages is to deter the tortfeasor from again engaging in similar conduct. Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961). Therefore, the measure of punitive damages is unlike the measure of compensatory damages because punitive damages may validly amount to a windfall for a plaintiff. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). However, a jury is more likely to spread a large verdict among a large number of plaintiffs than it would be to give one plaintiff the same large verdict. The windfall concept must not be expanded to this extent. It is in this manner that consolidation resulted in substantial prejudice to the appellant. Therefore, we conclude that the order of consolidation was an abuse of discretion and reverse on that issue.

Since the case must be retried, we discuss the other points which are raised on this appeal and will likely arise again upon retrial.

Appellant argues that the trial court committed error in first allowing the appellees to nonsuit their claims for punitive damages against the 29 employees and then allowing appellees to proceed on their claim for punitive damages against the railroad alone. Appellant relies on our case of Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981).

In the case of Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960), the plaintiff brought a libel action against three parties. At trial, evidence of the financial worth of two of the defendants was introduced but there was no showing as to the third. The jury returned verdicts for compensatory and punitive damages against all three defendants. We reversed, holding that when a plaintiff sues more than one defendant he waives his right to punitive damages even though they are otherwise assessable. The case was an anomaly. Most jurisdictions at that time held that joint tortfeasors could be jointly and severally liable for punitive damages and it was only the evidence of the wealth of one or more of the joint tortfeasors which was inadmissible. See Giror, Torts Assessment of Punitive Damages Against Joint Tortfeasors, 15 Ark. L. Rev. 208 (1961).

Dunaway was then specifically overruled in Life & Casualty Ins. Co. of Tennessee v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966). There the plaintiff sued both a principal and an agent for compensatory and punitive damages. At trial, the multi-million dollar financial worth of the principal was admitted along with proof of the $1,000 net worth of the agent. The jury returned a verdict for compensatory damages and $35,000 punitive damages against both defendants. In overruling Dunaway, we held that joint tortfeasors could be jointly and severally liable for punitive damages. We then reversed the case only on the basis that the proof of financial worth of two or more defendants is unfair in an action for punitive damages. We stated:

Padgett’s attorney argues that regardless of the rule in the case of independent tortfeasors proof of financial worth should be allowed when the defendants are employer and employee. That argument is not sound. The reason for the rule — that one defendant should not be punished on the basis of another defendant’s wealth — applies just as well to employers and employees as to others not standing in that relation. Hence the rule, as one might expect, is applied in master-servant cases. Chicago City Ry. Co. v. Henry, 62 Ill. 142 (1871); Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43 (1935); McAllister v. Kimberly-Clark Co., 169 Wis. 473, 173 N.W. 216 (1919).

We have not changed our general rule that joint tortfeasors may be jointly and severally liable for punitive damages.

In Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981), the plaintiff brought a tort action against four parties who were the officers, directors and stockholders of a corporation. All four were alleged to have committed the same actionable wrongs. The prayer of the complaint was for compensatory and punitive damages against all four defendants. Prior to trial, the plaintiff sought to require each of the four defendants to produce documentation of his individual net worth. One defendant, Curtis, refused on the basis of our reasoning announced in Life & Casualty Ins. Co. of Tennessee v. Padgett, supra. The plaintiff then nonsuited three of the defendants from the claim for punitive damages, leaving only Curtis as a defendant in the punitive damage segment of the case. In Curtis we extended the philosophy of Padgett. We decided that, where there are two or more defendants who are alleged to have committed virtually identical wrongs, it would be unfair to allow the plaintiff to seek compensatory damages from all of them but punitive damages from only one. In that very limited situation we felt that it was more important to protect one defendant from being unjustly punished than to possibly provide a plaintiff with windfall damages. We stated:

It is argued that, here, only Curtis is sued since the complaint was amended to drop the claim for punitive damages against the other three officers. We see the claim as virtually identical; all are claimed to have defrauded the plaintiffs by causing the plaintiff’s money to be diverted to petitioner’s individual use. In Curtis’s case the amended complaint only added the fact that Curtis caused tennis courts to be built on his property. That is not essentially different from the claims against the others. It is all a case of diversion. There is no claim that Curtis acted willfully or maliciously or indeed any different from the others. The claim is that all defendants joined in the scheme and personally benefited. [Emphasis added.]
We conclude that the amendment is purely cosmetic. As it stands, only one of several persons is sought to be punished for wrongful conduct which is equally blamed on all four officers. Under these pleadings the plaintiffs have waived their claim for punitive damages.

Here, the first of the four cases is singly against the railroad. Thus, there was no valid Curtis issue to prevent the claim for punitive damages. However, the other three cases do present a Curtis issue which must be dealt with upon remand. The three original complaints make identical claims against all of the defendants. Obviously, pursuant to the Curtis doctrine, these plaintiffs should not have been allowed to seek punitive damages against the railroad alone on the basis of the original complaints. The appellees tacitly recognize this shortcoming in their original complaints by arguing that the pleadings were orally amended to állege that the railroad was guilty of greater culpability than were the individual defendants. An examination of the record disclosed that, although evidentiary matters relating to corporate policy and punitive damages were argued below, the appellees never moved to amend their pleadings. Certainly, the trial court never ruled on an oral amendment to the pleadings, and there was neither an express nor an implied consent to any amendments. See ARCP Rule 15 (a) and (b). Upon remand the trial court should settle the matter of the pleadings and then, if pleadings are to the effect that all the defendants are equally culpable, the appellant alone may not be singled out as a target for punitive damages. Curtis, supra. On the other hand, if the allegations are that the appellant railroad was guilty of greater culpability than the individual defendants, the claims for compensatory and punitive damages against the railroad and the claims for compensatory damages against the employees may be joined. See W. Prosser, Handbook of the Law of Torts § 297 (4th ed. 1971). The issue of proof of the financial worth of appellant is not raised on this appeal and therefore we do not reach it.

Appellant next contends that the trial court erred in allowing testimony involving negotiations. This point is also likely to again arise upon retrial.

The appellees called Ron Glover, a claims agent of appellant railroad, as their witness. The material question and answer are:

Q. And you are telling this jury that you don’t remember telling Mr. Wolford, “Well, it’s cheaper for us to pay these claims than it is to try to maintain the right-of-way to prevent fires”?
A. No sir, I’m telling them that I did not say that.

The appellees then called William Wolford who testified that, while he was in the process of settling his claim, Ron Glover did make such a statement to him:

Q. What did he tell you?
A. He told me that it was less expensive to settle claims caused by the fires rather than to keep the right-of-ways of the railroad mowed and to keep fires from starting.

Appellant first argues that the statement is hearsay because its agent did not have authority to make such a statement. However, these statements are not hearsay and fall within the definition of an admission of a party opponent as set forth in Ark. Stat. Ann. § 28-1001, Rule 801 (d) (2) (iv) (Repl. 1979), which provides:

(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(2) Admission of a party-opponent. The statement is offered against a party and is... (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship.

It is no longer necessary that an agent be authorized by his principal to make a statement. As we said in Houston General Ins. Co. v. Arkansas Louisiana Gas Co., 267 Ark. 544, 592 S.W.2d 445 (1980):

The range of statements admissible under the agency standard was broadened considerably by this rule which is a verbatim adoption of the Federal Rules of Evidence rule 801 (d) (2) (D), 28 U.S.C.A. “Once agency, and the making of the statement while the relationship continues, are established, the statement is exempt from the hearsay rule so long as it relates to a matter within the scope of the agency.” Weinstein’s Evidence§ 801 (d) (2) (D) [01], p. 162. See also Mahlandt v. Wild Canid Survival, etc., 588 F.2d 626 (8th Cir. 1978); Process Control v. Tullahoma Hot Mix Paving Co., 79 F.R.D. 223 (E.D. Tenn. 1977); and Pino v. Protection Maritime Ins. Co., Ltd., 599 F.2d 10 (1st Cir. 1970). The rule insures the trustworthiness and reliability of the admission by providing that such statements are admissible only if made during the existence of the relationship. An employee is unlikely to j eopardize his job by making false statements which are costly to his employer. Weinstein’s, supra.

The real issue is whether the admission made during settlement negotiations is admissible. See Ark. Stat. Ann. § 28-1001, Rule 408 (Repl. 1979). The trial court took the erroneous position that the testimony was admissible to impeach Glover under these circumstances. However, the appellees were not trying to impeach Glover but instead were trying to get the evidentiary matter of the policy of the railroad before the jury in their case-in-chief.

Rule 408 governs the issue. The first two sentences of the rule, which are only slightly different from their federal counterpart, are as follows:

Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. [Emphasis added.]

The clear meaning of these first two sentences is that statements made in compromise negotiations of a third party claim are not admissible to prove liability.

Although the statement made during settlement negotiations is inadmissible in the plaintiff’s case-in-chief, upon retrial the statement would be admissible in a specific situation — if offered to impeach the direct testimony of the railroad. The last sentence of Rule 408 which is almost identical to its federal counterpart, provides:

This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness . . . [Emphasis added.]

The third sentence, which is by way of illustration and not limitation, must be reconciled with the first two. The drafters of the rule were attempting to adopt a policy to encourage compromise and, at the same time, not to immunize all evidence merely because it was presented during negotiations. They clearly decided that the need to evaluate a witness’s credibility outweighs some parts of the policy of encouraging compromise. There are two ways to construe and reconcile the third sentence with the first two. One is to read the first two sentences as always barring evidence of compromise when offered to prove the ultimate fact. The other, and better, approach is to read the last sentence as permitting the use of compromise evidence to reach the policy goals of the rules of evidence. For example, it is suggested that bias or prejudice of the witness may be shown only when the evidence permits the inference of bias to be made without an inference of the offeror’s belief in the validity of the claim being settled. See 23 C. Wright & K. Graham, Federal Practice and Procedure § 5314 (1980). In the case of proof of bias there is no policy reason to invade the area of the offeror’s belief in the validity of the claim. But, as a matter of policy, there is a great distinction between offering evidence which permits an inference of bias and offering evidence which proves a false representation.

The policy of the Rules of Evidence is “to the end that the truth may be ascertained.” Rule 102. The purpose of Rule 408 is to promote complete candor between the parties to the settlement negotiations but not to protect false representations. Thus, when a party has made a statement at trial which is inconsistent with a statement made during settlement negotiations, the inference is that one of the statements is knowingly false. In such a situation, we conclude that the mandate in Rule 102 to interpret the rules so as to foster the values of “fairness” and “truth” requires us to hold that prior inconsistent statements made in the course of settlement negotiations should be admitted for impeachment purposes. See C. Wright & K. Graham, supra.

This policy interpretation of Rule 408’s exclusionary rule is consistent with the Supreme Court’s policy interpretation of the Fourth Amendment exclusionary rule. The latter rule is that evidence obtained in an illegal search is inadmissible in the government’s case-in-chief but is admissible to impeach the direct testimony of the defendant. United States v. Havens, 446 U.S. 620 (1980).

Upon retrial the same proof may not develop, and therefore we do not address in full appellant’s argument that there was insufficient evidence to support an award of punitive damages. We do point out that if a defendant knew that its corporate policy would inflict damage but nevertheless continued that policy with a conscious indifference to the consequences, it could be liable for punitive damages. As stated in Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981), “[A]s a matter of public policy, punitive damages can serve useful functions ...” That function can well be served in the event of such a corporate policy. Brown v. Missouri Pacific R.R., 703 P.2d 1050 (8th Cir. 1983).

Reversed and remanded.

Adkisson, C.J., and Hickman, J., concur in part and dissent in part.

Richard B. Adkisson, Chief Justice,

concurring in part, dissenting in part. Rule 408, Uniform Rules of Evidence, provides that statements made during settlement negotiations are “not admissible to prove liability for, invalidity of, or amount of the claim or any other claim.” To allow the substantive presentation of such evidence under the guise of impeachment for bias is but to circumvent the purpose of the rule which is to encourage open and frank settlement negotiations.

Darrell Hickman, Justice,

concurring in part, dissenting in part. This was a complicated case, tried over a period of several days, involving four plaintiffs who suffered damages from fires alleged to have been caused by Missouri Pacific Railroad Company. The plaintiffs, appellees here, originally sued Missouri Pacific and some of its employees, not only for compensatory damages but also for punitive damages. Before proceeding to trial, the appellees deleted their request for punitive damages against all employees, claiming punitive damages only against the appellant, Missouri Pacific Railroad Company. This was clearly prejudicial error and requires us to reverse the decision because of our decision in Curtis v. Partain, Judge, 272 Ark. 400, 614 S.W.2d 671 (1981). That decision is exactly in point; all or none of the defendants must be sued for punitive damages.

I do not agree that the trial court committed error in any other way. The appellees’ lawsuit can best be characterized as one more for punitive damages than for compensatory damages. The four appellees who filed the lawsuit suffered damages as a result of four separate fires; their claims for reimburement for damages were not significant as the verdict indicates. The four were compensated together less than $6,000 for their damages; but each was awarded $200,000 in punitive damages. The appellees alleged that Missouri Pacific had on numerous occasions over the last three years negligently and carelessly started fires, was made aware of these fires and took no action to prevent further damage; that the conduct of Missouri Pacific in allowing its trains to consistently, continuously, negligently and carelessly start fires manifested a complete and utter indifference for the safety of the appellees’ property. Missouri Pacific was made aware that its trains were destroying the appellees’ property and continued to operate them knowing that the operation of those trains, in the manner in which they had been operated, would damage the appellees’ property. There was evidence submitted that Missouri Pacific was placed on notice of the condition of its right of way in previous lawsuits and was aware that there had been fifty fires in the preceding eighteen months along this section of the track in Independence County, Arkansas — all but one being started on the right of way. An employee of appellant testified that the employees were directed that fusees be thrown to the side of the track rather than between the rails, to avoid damage to the ties. There was evidence that there were more fires on this section of the track than in any other section in the district. The appellees offered evidence in detail from landowners, including the appellees themselves, as to the frequence of the fires in this area. Reports of the local forest ranger were introduced about the fires. This evidence in my judgment was sufficient to support the award for punitive damages which is one of the questions presented to us and will undoubtedly arise again on a retrial.

The majority is simply substituting its judgment for that of the trial court on the question of consolidation. The rule clearly allows consolidation where common questions of law or fact are involved. Here both are involved. ARCP, Rule 42.

Now, instead of one trial — a considerable saving to the State — there will be four separate trials in which exactly the same evidence will be admitted: evidence of all the fires along this stretch of the right of way and evidence of the other three claims, which will be the subject of separate lawsuits. The justification for this rigid and unreasonable position is that it is more likely that a jury will more harshly penalize a defendant where there are multiple claims than if there were only one. This court does not have a history of favoring punitive damages and never hesitates to strike or reduce punitive damages. That is what the majority ought to do if it fears an excessive award rather than nullifying the rule.

It is true that the statement made by Ron Glover, a claims representative for Missouri Pacific, was admitted to impeach rather than to directly prove that Missouri Pacific had a policy for paying claims rather than preventing the continuation of a dangerous situation, and, the statement was made during negotiations for settlement of the claim. Ordinarily such a statement is inadmissible to prove the validity of a claim. But that does not mean that Ark. Stat. Ann. § 28-1001, Rule 408 (Repl. 1977), requires that the statement be excluded, if it was admissible for any other purpose. I think the statement went directly to the plaintiffs’ claim for punitive damages, to show that Missouri Pacific had a complete utter indifference and conscious disregard for the safety of the appellees’ property. What better proof could there be than the statement? Furthermore, the statement did not go to the compromise or settlement of the claim that was being settled at the time the statement was made. It was an offhand remark that to me was irrelevant as to that particular claim. But it was certainly relevant as to the cause of action expressed by the appellees herein. It is true that the pleadings do not state explicitly that Missouri Pacific ought to be punished because it has a policy of paying claims rather than preventing fires. But when the pleadings are taken in a liberal context, as we should take them, that is, in effect, what the pleadings say, and that is the reason the railroad company had punitive damages adjudged against them.

In the case of Brown v. Missouri Pacific, decided by the 8th Circuit Court of Appeals April 1, 1983 (Slip Opinion No. 82-1946), the court held that a statement made by an employee of the railroad about policies of the railroad was admissible on the question of punitive damages. Punitive damages were claimed in the Brown case because it was alleged that the railroad knew, or had reason to know, that its course of conduct was about to inflict injury, but nonetheless continued a course of conduct with a conscious indifference to the consequences. I think the claim in the Brown case for punitive damages was substantially like the one made in this case, and the only difference would be that the statement made in the Brown case was made at a civic club meeting, and in this case it was made by a claims agent during negotiations. Rule 408 does not preclude such a statement from being admitted where there is a direct cause of action for punitive damages because a company continues a course of conduct that amounts to willful and wanton indifference, for which penalties should be imposed. The landowners were able to prove that it is, indeed, cheaper to pay claims than to prevent a dangerous act.

I must emphasize for the benefit of the parties that this is a concurring opinion expressing only my views. .


author: Robert H. Dudley, Justice.

text:
    STRAWN FURNITURE COMPANY, INC. v. L. K. AUSTIN
    83-150
    655 S.W.2d 397
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983

      Rose Law Firm, P.A., by: Gary J. Garrett and R. Davis Thomas, Jr., for appellant.

      Gibson Law Office, by: Charles S. Gibson, for appellee.
   Robert H. Dudley, Justice.

The sole issue presented is whether appellant employed a usurious method of charging interest. The case is governed by Article 19, Section 13 of the Constitution of Arkansas since the charges occurred prior to the effective date of Amendment 60. The trial court found the rate of interest to be usurious. We affirm. Jurisdiction is in this Court by virtue of Rule 29 (1) (a).

The appellant compounded interest (charged interest on the unpaid interest) by using the following formula: The amount of indebtedness was multiplied by 10% to obtain the yearly amount of interest; that amount was then divided by 360 and then multiplied by 30 to obtain the amount of interest for the month; this amount of unpaid interest was added to the principal. Each succeeding month the interest was compounded by using the same formula. The evidence is uncontradicted that the compounding of interest in the case at bar resulted in an annual percentage rate of 10.76%.

Appellant contends that the propriety of compounding interest is well settled in Arkansas. However, it is equally well settled that compounding interest will render a contract usurious if it effectively raises the annual rate of interest above 10%. Compare Cagle v. Boyle Mortgage Co., 261 Ark. 437, 549 S.W.2d 474 (1977) with Phipps-Reynolds Co. v. McIlroy Bank & Trust Co., 197 Ark. 621, 124 S.W.2d 222 (1939) and Grider v. Driver, 46 Ark. 50 (1885).

We do not reach appellant’s argument that there was an implied agreement between the parties to compound interest because, even if there was such an agreement, it would be contrary to the constitutional provision in effect at the time. See Ark. Const, art. XIX, § 13.

Affirmed.

Adkisson, C.J., and Hays, J., dissent.


author: Steele Hays, Justice.

text:
    Anna Carol WILLIFORD v. Charles Britt WILLIFORD
    83-145
    655 S.W.2d 398
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983

      Bill R. Holloway of Holloway fa Bridewell, for appellant.

      Bramblett fa Pratt, by: Eugene D. Bramblett, for appellee and cross-appellant.
   Steele Hays, Justice.

This appeal comes to us from the Court of Appeals pursuant to Rule 29 (1) (c), as involving an interpretation of “marital property” under Ark. Stat. Ann. § 34-1214 (Repl. 1962).

These parties married on January 20, 1979 and Anna Williford moved into Britt Williford’s Camden home, combining her household goods with his. Mr. Williford’s homeowner’s policy was amended to include Anna Williford as a named insured.

In April, 1979, a tornado partially destroyed the dwelling and furnishings. From the insurance proceeds, Britt Williford satisfied a mortgage on the property amounting to $29,534.00, and another $14,267.00 was paid to the Willifords jointly for the damaged furnishings. The record does not tell us what part of the contents coverage was allocated to their separate furnishings, but the indications are that the parties treated the $14,267.00 as joint funds. Additional amounts were paid separately for other losses or expenses covered under the policy.

Soon after the insurance settlement was made, the parties decided to rebuild on Mr. Williford’s lot, using salvageable materials, which included foundation, plumbing, studs, rafters and air conditioning and heating units. As a down payment to the contractor, the Willifords used $14,000.00 from the insurance settlement and borrowed $26,000.00 from Security Savings and Loan Association. Title to the real property remained solely in Mr. Williford’s name.

In January, 1982 Anna Williford filed suit for divorce. At trial there was testimony, essentially undisputed, that the current value of the real property was $57,359.00 and that the value of Mr. Williford’s lot was $12,000.00 and the usable items, $11,050.00, or $23,050.00 for the lot and the salvage. The Chancellor awarded Mrs. Williford a divorce, a new car costing $8,268.00, and various articles of personal property. The Chancellor fixed her interest in the real property at $2,680.00, which he reached by deducting $12,000.00 (for the separate property of Britt Williford) from the appraised value of the property, arriving at $45,000.00. From that figure, he reasoned that the “marital basis” in the property was $40,000.00 ($14,000.00 from insurance and $26,000.00 from the loan), which he subtracted from the $45,000.00 to arrive at a “marital profit” of $5,359.00. The “marital profit” was then divided equally to give each party $2,680.00.

Anna Williford has appealed, contending that her interest should be half of $19,359.99, or $9,679.50, determined as follows:

Appraised value of dwelling $57,359.00
Less the value of the lot -12,000.00
"Marital Basis” $45,359.00
Less the loan from Security Savings -26,000.00
Net marital property $19,359.00
One-half to Mrs. Williford $ 9,679.50
One-half to Mr. Williford 9.679.50
$19,359.00 $19,359.00

Mr. Williford has cross-appealed, claiming that Mrs. Williford has no interest in the property. He argues that the value of his lot and salvage totaled $23,050.00 ($12,000.00 for the lot and $11,050.00 for salvage), leaving a net of $34,309.00 from the appraised value of $57,359.00. This net of $34,309.00 he subtracts from the "marital basis” figure of $40,000.00, to arrive at a "marital loss” of $5,691.00.

None of these formulas proves satisfactory, although we agree with the Chancellor on two basic points: one, the lot belonged to Mr. Williford prior to the marriage and remained his separate property throughout the marriage, thus it was not “marital property” as defined in § 34-1214; and two, that the rebuilt dwelling did constitute marital property to the extent that joint funds were used to acquire the property, less the unpaid amount of the loan, which is not disputed. Thus, a part of the rebuilt dwelling comes within the meaning of “marital property”, irrespective of the legal title.

Our marital property statute, Ark. Stat. Ann. § 34-1214, provides that all marital property will be distributed equally between divorcing parties, unless the court finds such division to be inequitable. Here, there is no suggestion that the Chancellor intended to divide marital property disproportionately. If he had, it would have been necessary under our statute that he explain his reasons. The statute also provides that “all other property” shall be returned to the party who owned it prior to the marriage, unless some other division shall be ordered. The Chancellor attempted to follow the spirit of § 34-1214 in awarding Mrs. Williford a marital interest in the rebuilt residence, even though legal title to the property belonged to Mr. Williford, and we agree with that approach. Our only disagreement with the Chancellor is that we think his method of determining the value of her interest did not go far enough.

In arriving at the value of that interest, it must be recognized that the $14,000.00 down payment belonged to both Mr. and Mrs. Williford. It not only was treated by them as joint funds, but it was derived from insurance proceeds belonging to both of them. Mrs. Williford may not have paid the premium, but it is plain that when her name was added to the policy it was meant to protect her from any covered losses affecting her household goods. What part of the $14,000.00 may have been attributable to the damage to her things, or to his, is not revealed. However, the check in settlement was paid to them jointly and the funds were deposited to a joint checking account. It is evident that the $14,000.00 was regarded by them as joint funds, as indeed they were.

Thus, while we think that Mr. Williford was entitled under our statute to retain that part of the property that he brought into the marriage, we also think the Chancellor was correct in finding that Anna Williford had a marital interest in the property under our marital property statute. However, while he gave her credit for one-half of what he found to be “marital profit”, or appreciated value, he failed to give her credit for that part of the purchase price which she contributed through the use of the joint down payment.

We think, too, that Mr. Williford is entitled to the full value of the usable items salvaged from the tornado, which the testimony clearly establishes. An appraisal expert fixed the value of the lot and the other improvements used in the rebuilding at $23,050.00. When that value is taken from the value of the finished dwelling, $57,359.00, it leaves $34,-309.00. Subtracting the loan of $26,000.00, which Mrs. Williford does not not dispute, leaves a balance of $8,309.00, thus:

Appraised value $57,359.00
Less Mr. Williford’s property -23.050.00
Net $34,309.00
Less loan from Security Savings -26,000.00
Marital property $ 8,509.00
One-half to Mrs. Williford $4,154.50
One-half to Mr. Williford 4,154,50
$8,309.00 $8,309.00

It should be noted that the Chancellor is given broad powers under § 34-1214 to distribute all property in divorce, non-marital as well as marital, to achieve an equitable division. The only requirement is that if he divides marital property other than evenly, or non-marital property other than by returning it to the original owner, he will consider the nine factors specified in the statute, and fully explain his reasons for the record. Here, there were several factors which doubtless influenced the Chancellor’s distribution, i.e. the relatively short duration of the marriage, other properties distributed, and the respective needs and earnings of the parties, and we are not asked to review the Chancellor’s overall distribution, only that involving the dwelling.

Mrs. Williford also urges that it was error for the Chancellor to find that each party should bear his or her own costs and attorney’s fees. We have repeatedly said that attorneys’ fees in divorce and support cases are not awarded as a matter of right, but rest within the Chancellor’s discretion and will not be disturbed unless that discretion is abused. Bowers v. Bowers, 257 Ark. 125, 514 S.W.2d 387 (1974); Ryan v. Baxter, 253 Ark. 821, 489 S.W.2d 241 (1973); Wiles v. Wiles, 246 Ark. 289, 437 S.W.2d 792 (1969). We cannot say the Chancellor’s discretion was misused when the case as a whole is examined. On appeal Mrs. Williford’s attorneys are allowed a fee of $500.00.

The decree is affirmed as modified.


author: Steele Hays, Justice. Robert H. Dudley, Justice,

text:
    Hoyt Franklin CLINES, James William HOLMES, Darryl V. RICHLEY and Michael Ray ORNDORFF v. STATE of Arkansas
    CR 82-54
    656 S.W.2d 684
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983
    [Rehearing denied October 3, 1983.]

      Marshall N. Carlisle; Donald R. Huffman, Public Defender; Priscilla Karen Pope; and Thomas J. Tucker, for appellants.

      Steve Clark, Atty. Gen., by: Dennis R. Molock and Alice Ann Burns, Dep. Attys. Gen., for appellee.

      Dudley, J., would grant rehearing.

   Steele Hays, Justice.

These four appellants were jointly tried and convicted of the January 8, 1981 capital murder of Don Lehman, a Rogers householder, and of the aggravated robbery of his wife and daughter. They were sentenced to death by electrocution on the capital murder charge and to life sentences on the two aggravated robbery charges. On appeal they allege a number of errors of law and procedure as grounds for reversal. Finding no error, we affirm the convictions and the sentences imposed.

I.

THE TRIAL COURT ERRED IN FINDING THE ARKANSAS CAPITAL MURDER STATUTE CONSTITUTIONAL.

Appellants make a four-fold attack on the constitutionality of the Arkansas felony murder statute, Ark. Stat. Ann. § 41-1501 (1) (a) (Repl. 1977), which provides that capital murder occurs if a person, acting alone or with others, commits one of several felonies, including robbery, in the course of which either he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life. Appellants argue that the statute is vague and overbroad; that it denies equal protection of the law inasmuch as there are currently twenty-three men, but no women, on death row; that the imposition of the death penalty is arbitrary and capricious because the prosecuting attorney is given discretionary power to waive the death penalty and because the jury must return a death verdict if they find aggravating circumstances outweigh mitigating circumstances; and finally that our statutory scheme does not require the jury to consider the culpability of each individual defendant.

The vagueness argument has been raised and answered more than once. In Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980), we pointed out that in the definition of criminal offenses some generalization is both unavoidable and desirable so that prosecutors and juries may have leeway to lighten the punishments that might be imposed for conduct that falls within overlapping offenses. (See Cromwell at p. 107).

The claim that the equal protection clause of the constitution is offended because men are given the death penalty disproportionately to women is raised initially on appeal and, beyond that, is supported by argument alone.

We disagree that juries are bound under our statutory scheme to return a verdict of death if they find aggravating circumstances outweigh mitigating circumstances. We have pointed out in several cases that whatever the jury may find with respect to aggravation versus mitigation, it is still free to return a verdict of life without parole, simply by finding that the aggravating circumstances do not justify a sentence of death. (See Williams v. State, 274 Ark. 9, 621 S.W.2d 686 [1981], and Ark. Stat. Ann. § 41-1302 [2] [c]). Additionally, because the capital murder statute and the first degree murder statute overlap in appropriate cases, the jury may refuse consideration of both the death penalty and life without parole, by returning a guilty verdict as to the charge of murder in the first degree. Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981). This jury had that option.

The argument that prosecutorial discretion in seeking the death penalty is arbitrary and capricious has been dealt with by the Supreme Court of the United States (Bordenkircher v. Hayes, 434 U.S. 359 [1978]); and by us (Miller v. State, 269 Ark. 341, 605 S.W.2d 430 [1980]). It needs no further review.

The claim that our statutory scheme does not require the jury to separately weigh each defendant’s role in a crime involving capital murder, so as to determine individual culpability, might be disposed of on procedural grounds, as the argument was not clearly raised below, i.e. we find no objection to the capital murder instructions, nor did the appellants tender to the trial court an instruction consistent with their view of the law. Schwindling v. State, 269 Ark. 388, 602 S.W.2d 639 (1980). However, we choose to consider the merits of the argument.

Appellants cite Enmund v. Florida, _ U.S _, _ S. Ct. _, 73 L. Ed. 2d 1140 (1982). There, the Supreme Court held that death was a cruel and unusual punishment for one who had participated in a robbery during which murders were committed, but was not present at the killings and did not intend that the victims be killed. The court noted that the record supported no more than an inference that Enmund, the petitioner, was the person waiting in a car near the scene of a robbery. Two others had gone to the rear of a nearby farmhouse and, on a pretext of having car trouble, coaxed the victim outside to rob him. When the victim called for help his wife came out and shot one of the robbers. The two victims were killed in a gun battle and the robbers fled with their money to a waiting car.

Relying on the Eighth Amendment, the court held that one who does not intend that a robbery victim be killed, is not present when the killing occurs, and does not contemplate that lethal force will be used in carrying out the robbery, is not subject to the death penalty. A Florida jury had found Enmund and a co-defendant guilty and recommended the death penalty for both defendants, which the trial court imposed. Acknowledging the absence of any direct evidence that Enmund was present at the killings, the Supreme Court of Florida affirmed, explaining that the interaction of the felony murder rule and the law of principals combine to make a felon generally responsible for the lethal acts of his co-felons. As it did with the death penalty for rape (see Coker v. Georgia, 433 U.S. 584 [1977]), the court reasoned that an overwhelming number of states and of American juries would repudiate the death penalty for crimes such as Enmund’s.

Significant comments are in the opinion, first, that there was no evidence that Enmund had any intention of participating in, or facilitating, a murder and, second, the court emphasized that “[i]t would be very different if the likelihood of a killing in the course of a robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony.” Here, a number of distinguishing factors immediately appear. At about 9:45 p.m., after he and his family had retired for the evening, Don Lehman answered a knock at his front door. He asked who was there and someone answered “David.” His daughter, Vickie, also responding to the knocking, said as her father unlocked the door the four appellants, masked and armed, burst into the room with such force that her father was knocked backward off his feet and the doorknob of the front door was jammed through a closet door behind. Two or three of the appellants struggled with her father toward the bedroom, where Mr. Lehman was wrestled onto the bed and a fatal shot to the head and one to the abdomen were delivered.

There was direct evidence from more than one source that appellants had discussed among themselves the necessity of murder if they met resistance; at least two of the appellants were armed with pistols, perhaps three of them, and the fourth with a lethal weapon fashioned from a metal chain. All four wore ski masks and all four burst into the Lehman home when the latch was opened. The proceeds, some $1,200, were presumably divided to the appellants’ liking. It must be noted, too, that Lehman was given no opportunity to yield, he was immediately attacked by appellants, sustaining blows to his head and face from the metal chain and a mortal wound to the chest before reaching the bedroom.

Although perhaps only two of the appellants were in the bedroom when Mr. Lehman was killed, it cannot be ignored that when a group of individuals agree to execute a criminal enterprise involving the forced, nighttime entry of a private dwelling, known to be occupied, wearing masks and armed with pistols, intent on robbery, it follows that murder is a most probable consequence. We think the likelihood of a homicide under the circumstances is so substantial as to bring this case clearly within the quoted exception of the Enmund decision, on those circumstances alone. Added to that is the evidence that murder was plainly contemplated by the appellants. We conclude the blame for Don Lehman’s murder rests with near equality on all of the appellants.

As a final response to this phase of the argument, we point out that there are added safeguards in our system against the arbitrary imposition of the death penalty. In Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), we noted the power of the trial court to reduce a death sentence to life imprisonment and in that opinion we committed this court to a policy of comparative review, by examining the death penalty in every case on a comparable basis. We have demonstrated our readiness to modify the death sentence where it is imposed capriciously (see Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 [1981]), or where the culpability of co-felons is disproportionate (see Henry v. State, 278 Ark. 478, 647 S.W.2d 419 [1983]), or where death is unduly harsh under the circumstances (Neal v. State, 274 Ark. 217, 623 S.W.2d 191 [1981] and Giles v. State, 261 Ark. 413, 549 S.W.2d 479 [1977]).

We are not overlooking the suggestion that Michael Orndorff’s participation in the crime was half-hearted; that he may have asked to be taken home as the appellants were leaving the Baker residence; and that after the shooting he disclaimed any wish to be involved in a murder. But the j ury unanimously rejected as a mitigating factor that any appellant played a minor role. Too, Orndorff’s request to be taken home may have been due to Steve Baker’s having declined to go along, rather than because of any compunctions over the undertaking. And his belated comment that he didn’t want to be a part of a murder must be judged from the standpoint that it came after the fact and against the uncontradicted proof that he burst into the Lehman home along with the others, masked and intent on robbing, killing, if need be, anyone who resisted. We need not repeat what we have already said about the shared culpability for Don Lehman’s death under the circumstances of this case. To selectively exclude this appellant from the penalty imposed by the jury for conduct readily assumed by all of them would be to arbitrarily excuse him from the predictable consequences of his own actions, consequences which the proof showed he expressly recognized.

II.

THE TRIAL COURT ERRED IN REFUSING TO GRANT A SEPARATE TRIAL FOR EACH DEFENDANT.

Prior to the adoption of the Arkansas Rules of Criminal Procedure in 1976, defendants in capital cases were entitled to severance as a matter of right pursuant to Ark. Stat. Ann. § 43-1802 (Repl. 1977). However, A.R.Cr.P. Rule 22.3 superseded § 43-1802 and gives discretion to the trial court to try the defendants jointly in capital cases. Hallman and Martin v. State, 264 Ark. 900, 575 S.W.2d 688 (1979).

Appellants submit that our recent decision in McDaniel and Gookin v. State, 278 Ark. 631, 648 S.W.2d 57 (1983), requires a reversal of this case, but the argument cannot be sustained. There are fundamental differences between the two cases and in McDaniel we did not disturb the rule that severance of defendants rests within the sound discretion of the trial court. We pointed out that such discretion is broad, though to be exercised judiciously in capital cases, with careful scrutiny to be given to a number of elements which could affect the fairness of the trial. (See McDaniel and Gookin v. State, page 638). In McDaniel, the defenses of the defendants were utterly antagonistic, each defendant claiming the murder was committed unexpectedly by the other. No such similarity exists here. It is argued that the defenses in this case are antagonistic, but that claim cannot be supported. We find no effort among the defendants to point to another defendant as the murderer; the proof on behalf of each defendant (only one of whom testified) was aimed for the most part at proving he was not in the bedroom, where the murder occurred. These defenses are not in the least antagonistic in the same sense as in McDaniel.

The final and essential difference is that the McDaniel case had the added element that where culpability was distinctly disproportionate, the jury was admittedly unable to decide which of the two defendants committed a heinous act, resulting in two defendants being convicted of a capital crime for which only one may have been guilty. Whereas here, there is substantial evidence, indeed overwhelming evidence, that all four appellants planned and executed a robbery, expressly deliberating on murder as a possible consequence. Nothing in this record suggests that for these appellants to be tried jointly resulted in substantial injustice and we find no abuse of discretion in the trial court’s refusal to grant separate trials.

III.

THE USE OF A DEATH QUALIFIED JURY IN THE INSTANT CASE DENIED THE APPELLANTS AN IMPARTIAL JURY ON THE ISSUES OF GUILT AND PUNISHMENT AS REQUIRED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION.

The gist of this argument is that when those members of a jury panel holding religious or conscientious scruples against capital punishment are eliminated, the cross-section of the population which remains is not impartial and unbiased on the issues of guilt and punishment. They are, it is urged, favorable to the prosecution and, hence, guilt prone. The argument is not new and needs no reiteration. It has been considered and rejected here as well as in the Supreme Court of the United States. Witherspoon v. Illinois, 391 U.S. 510 (1968); Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980).

IV.

THE JURY SELECTED IN THE INSTANT CASE WAS NOT SELECTED IN ACCORDANCE WITH THE STANDARD PRESCRIBED IN WITHER-SPOON AND HOBBS.

The Witherspoon rule, as interpreted in Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981) permits the exclusion of persons as prospective jurors only if they irrevocably oppose or favor the death penalty regardless of the evidence. Appellants insist that two of the veniremen, Mrs. Kaiser and Mrs. Dick, should not have been excused for cause because of their uncertainty as to capital punishment and Mr. Harley Wood, who showed some preference for it, should have been excused for cause.

We have examined the questions asked in voir dire and the responses given and, typically, no clear conclusion can be drawn. The answers are tentative or equivocal, and the trial court is in a better position than we are to gauge the attitude of the veniremen and decide whether each will weigh the evidence and, if appropriate, will consider all the penalties provided by law. We cannot say his discretion was used wrongly in any instance complained of. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980); McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979).

V.

THE TRIAL COURT ERRED IN LIMITING THE APPELLANTS TO A TOTAL OF TWELVE PEREMPTORY CHALLENGES.

The trial court limited the four defendants to a total of twelve peremptory challenges, which they claim is error. We have held in three cases that where defendants are tried jointly each defendant is not entitled to the full allotment of peremptory challenges, but a challenge by one is a challenge by all. Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979); Lewis v. State, 220 Ark. 914, 251 S.W.2d 490 (1952); Hearne v. State, 121 Ark. 460, 181 S.W.2d 291 (1915).

No absolute right to peremptory challenges exists under the constitution, see Stilson v. United States, 250 U.S. 583 (1919), and we see no prejudice resulting from the position we have taken in the earlier decisions. The right to challenge a prospective juror on peremptory grounds may be exercised simply because counsel has reservations that certain groups might be skeptical of its theory of the case; it is a very general response and such criteria as occupation, education, age, residence, social background, sex, and even facial expression, may influence its use, depending on the nature of the case. But ordinarily these considerations are applicable to the defendants as a whole and not individually. Here, it appears the peremptory challenges were exercised collectively by the defense, as might be expected, and no argument is offered that for a specific reason one prospective j uror was objectionable to one of the defendants, though not to the others. We adhere to our holding in Williams v. State, supra.

VI.

CALLING A FIVE DAY RECESS AT THE CLOSE OF TESTIMONY WAS AN ABUSE OF THE COURT’S DISCRETION.

Appellants allege that it was an abuse of discretion for the trial court to order a five day recess as the trial was nearing a close. The recess occurred, evidently, between the taking of testimony and the instructions and arguments, because of the trial judge’s scheduled participation in a meeting of the Arkansas Judicial Council. The trial seems to have commenced well in advance of the meeting, but moved at a slower pace than expected. Such matters as recesses and sequestration of the jury are not amenable to inflexible rules and must be governed to a great extent by the exigencies of the day and the calendar. We see no reason why it would work to the appellants’ greater prejudice to recess from Wednesday to Monday, than from Friday to Monday, as often occurs in trials. We find no abuse of discretion.

VII.

IT WAS ERROR FOR THE JURY TO FIND THE AGGRAVATING CIRCUMSTANCE THAT, “IN THE COMMISSION OF THE CAPITAL MURDER, EACH OF THE APPELLANTS KNOWINGLY CREATED A GREAT RISK OF DEATH TO A PERSON OTHER THAN THE VICTIM.”

Citing Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981), appellants contend that because Vickie Lehman and Virginia Lehman were victims of the underlying felony of aggravated robbery to the capital murder of Don Lehman, the evidence will not warrant a finding as an aggravating circumstance that appellants knowingly created a great risk of death to a person other than the victim. Appellants assert that Williams v. State supports the argument, but fail to explain how. The holding there has no particular relevance to this case. Williams’ death sentence was reduced because one of the aggravating circumstances found by the jury, commission of a prior felony, did not involve violence as required by Ark. Stat. Ann. § 41-1303 (Repl. 1977). The decision also holds that where a jury finds no mitigating circumstances and three aggravating circumstances, one of which is erroneous, we will not regard the error as harmless simply because two aggravating circumstances remain, as we are not in a position to speculate as to what a j ury would do on a finding of two aggravating factors instead of three.

The appellee submits that this point was not preserved by an objection to the instructions or to the verdict forms. Without implying that the point is otherwise meritorious, we decline to consider it for the lack of proper objections.

VIII.

IT WAS ERROR FOR THE TRIAL COURT TO PERMIT THE INTRODUCTION OF EVIDENCE OF OTHER CRIMES AND ACTS AGAINST APPELLANTS CLINES AND ORNDORFF.

Mrs. Tammy Baker was called by the state to prove that the appellants had been at her home the evening of the Lehman murder, drinking beer and playing cards with her husband, Steve Baker. She said when she answered the door the four appellants were there, that one was wearing a ski mask and stuck a gun in her face. She was ordered to “stick ’em up”, before realizing that a joke was being played. The four stayed until about 9:30 p.m. and she overheard discussions involving the robbery of someone who lived nearby.

On cross-examination she was asked by counsel for one of the defendants, Clines, whether her husband was then facing charges of robbery committed the night before the Lehman crime. She said he was and was then asked if any of the appellants were involved and she said Orndorff and Clines were. Orndorff’s objections to this line of questioning were overruled and when Steve Baker followed his wife to the stand the state was permitted to go into the incident in greater detail.

Appellants Clines and Orndorff complain that the admission of this evidence, as well as a statement by Billy Weaver that Darrell Richley told him he was the one who shot Don Lehman, that he had been involved in “stealing and robbing,” violate the rule against admitting evidence of prior bad acts, citing Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). But the Weaver comment was admitted with an admonition to the jury in accordance with the purposes of Rule 404 (b), Uniform Rules of Evidence, and the Baker testimony has to be examined in light of the fact that it was Clines’ lawyer who pointedly asked the questions that brought the evidence into the trial. Whether the object was to discredit Tammy and Steve Baker’s testimony by showing that Baker was charged with similar conduct is speculation, but we are not persuaded that reversible error occurred. It is entirely possible that the evidence would have been received by the trial court under Rule 404 (b) had it been offered for the purpose of proving identity, opportunity, intent, preparation, or absence of mistake. Certainly the evidence of a robbery involving similar methods committed in close timing with the offense on trial had probative value. The prejudicial aspect is not so obvious that we can say the court was clearly wrong.

IX.

IT WAS ERROR FOR THE COURT TO ALLOW THE JURY, IN THE SENTENCING PHASE, TO FIND APPELLANTS CLINES AND ORNDORFF HAD “PREVIOUSLY COMMITTED ANOTHER FELONY, AN ELEMENT OF WHICH WAS THE USE OR THREAT OF VIOLENCE TO ANOTHER PERSON OR CREATING A SUBSTANTIAL RISK OF DEATH OR SERIOUS PHYSICAL INJURY TO ANOTHER PERSON” ON THE UNCORROBORATED TESTIMONY OF AN ACCOMPLICE.

After the appellants’ guilt had been established and the penalty phase of the trial was in progress the state was permitted to prove one of the seven aggravating circumstances listed in Ark. Stat. Ann. § 41-1303 (Repl. 1977) by the testimony of Steve Baker that he, Clines and Orndorff had previously committed another felony by the use or threat of violence. Baker said the three of them robbed Barry Cobbs and Tim Pettyjohn at gunpoint on January 7, 1981.

Appellants charge that since Steve Baker was an accomplice in the alleged robbery the penalty procedure violated the rule incorporated in Ark. Stat. Ann. § 43-2116, that a conviction cannot be had in any case upon the testimony of an accomplice unless there is corroboration by other evidence. As Steve Baker’s testimony was not corroborated, appellants claim that error resulted. The argument cannot be sustained, if for no other reason than the fact that § 43-2116 deals with grounds for conviction, whereas § 41-1303 deals with proving that a crime of violence was previously committed. Beyond that, in Miller v. State, supra, we held that the same degree of proof is not required to sustain a finding that an aggravating or mitigating circumstance exists, as would be required to sustain a conviction if that circumstance was a separate crime. (Miller at p. 355). We said that if there was evidence of an aggravating or mitigating circumstance, however slight, it is sufficient to submit that issue to the jury.

X.

THE TRIAL COURT ERRED IN ADMITTING THE TENNIS SHOES OF THE APPELLANT CLINES.

We need not delay unduly with the issue raised by this argument, as the admission of the evidence itself was of little or no consequence. An investigating officer testified that he took an impression of a foot print from a flower bed of the Lehman home; that there was a high degree of probability that it matched Hoyt Clines’ tennis shoe, however, he said it was impossible to be absolutely certain. But Clines’ presence at the scene in company with the other appellants was amply evidenced by other proof and no objection to this evidence was offered until the trial, as required by A.R.Cr.P. Rule 16.2.

XL

THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL FOR TESTIMONY CONCERNING IMPLICATING OUT-OF-COURT STATEMENTS OF A CO-DEFENDANT, DARRYL V. RICHLEY, REGARDING APPELLANT CLINES.

Freddie Baker was called by the state to prove that Darryl Richley came to his home a day or two after the crime involving the Lehman family to ask his help in selling the guns taken from the Lehman home. Richley, he said, talked about his part in the murder, and told him four of them went to the door with ski masks and “busted on in”, that one of the four started whipping Lehman with a motor chain belt, who made a break for the bedroom “and the guy pulled his mask off and kept hitting him. He said he got on the bed and that [Richley] shot him and said the guy kept going for a gun above the bed and he said he put the gun up to his head and shot him.” The questioning continued at length, with no other reference to the removal of a mask, and not until the state fully completed its interrogation was any objection made. At that point counsel for Hoyt Clines moved for a mistrial on the grounds that there was previous testimony that it was Clines who had removed his mask and hence Clines was deprived of his right to confront opposing witnesses. This argument lacks merit, as objections must be timely, Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981), and mistrials should be declared only when the trial court is certain the trial cannot, in fairness, continue. Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982).

XII.

THE EVIDENCE OBTAINED FROM THE SEARCH OF APPELLANT RICHLEY’S CAR AND APARTMENT SHOULD HAVE BEEN SUPPRESSED, BECAUSE THE SEARCH WARRANT WAS NOT BASED ON PROBABLE CAUSE AND THE CONSENT TO SEARCH GIVEN BY RICHLEY WAS NOT GIVEN VOLUNTARILY.

Appellant Richley urges that the affidavit for the search warrant was deficient in that no underlying circumstances for the affiant’s conclusions\were stated. He also argues that his consent was not voluntary. However, the search warrant and affidavit are not abstracted, as required by our rules, and the trial court found the appellant did give a lawful consent to the search. An independent determination of that issue has been made on review and we are satisfied the trial court’s finding was entirely consistent with the evidence, particularly in view of Richley’s testimony.

Finally, under A.R.Cr.P. Rule 36.24, and our Rule 11 (f), we find the treatment of other objections of appellants which were overruled, as well as rulings adverse to appellants, do not constitute reversible error. On a comparative basis we are not disposed to say the death penalty in this case is so wantonly, arbitrarily or freakishly imposed, or so excessive in relation to the crime, that we are compelled to modify the verdicts. There was sufficient evidence to support the findings of aggravating circumstances which were not outweighed by mitigating circumstances. We are satisfied the jury’s verdict was relatively free of passion or prejudice. Accordingly, the judgments and sentences are affirmed.

Dudley, J., concurs in part, dissents in part.

Purtle, J., dissents.

Robert H. Dudley, Justice,

concurring in part, dissenting in part. The State adduced overwhelming evidence that the four appellants were guilty of jointly committing a capital murder and two robberies. Their individual defenses were not mutually antagonistic. Although the charges were joined and the appellants were jointly tried, the appellants as well as the State were afforded a just and fair proceeding through the accusatorial phase of the bifurcated capital murder trial.

However, that holding does not mandate the conclusion that the due process protections were sufficiently afforded at the joint sentencing phase of the capital murder trial. The two phases of the bifurcated trial serve vastly different purposes. The essence of the accusatorial phase is the formal adversary presentation of evidence relative to guilt. The adversary concept places the State and the accused on an equal footing and so, in fairness to the State, joint trials are oftentimes required through this stage. Markedly different, the essence of the sentencing phase is the search for relevant information to choose which of the two penalties, life without parole or death, is appropriate for the person already found guilty. This second phase search for information is not based upon the same adversary concept. Our applicable statute provides that mitigating circumstances may be presented regardless of their admissibility under the rules of evidence while aggravating circumstances may be presented only when they are admissible under the rules of evidence. Ark. Stat. Ann. § 41-1304 (4) (Repl. 1977). The underlying reason for this is that the penalty of death is qualitatively different from all other punishments.

When the death penalty is sought, justice demands individual, not joint, sentencing. It is for this same reason that mandatory death sentences for particular crimes have been declared unconstitutional. Gregg v. Georgia, 428 U.S. 153 (1976). It is only after a structured exercise of discretion which guarantees individualized sentencing that the death sentence may be imposed. Proffitt v. Florida, 428 U.S. 242 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976). Accordingly, after a finding of guilt of capital murder, juries in this State may impose a sentence of death only after considering aggravating and mitigating circumstances. Ark. Stat. Ann. §§ 41-1301 & 1302 (Repl. 1977). Aggravating circumstances are principally related to the personal history of the individual defendant and not the nature of the crime committed. Ark. Stat. Ann. § 41-1303 (Repl. 1977). Mitigating circumstances are totally related to the personal background of the defendant. Id. Individualized sentencing requires structured detailed consideration of the personal history of the guilty person before the death sentence may be imposed. Any impediment to that individualized exercise of discretion is violative of the protection of due process.

The clear issue is whether the joint sentencing procedure used in this case afforded each appellant the structured and detailed consideration of his individual background which is required before the sentence of death may be imposed. Surely no one can doubt that when the j ury was sent out of the courtroom to fix the punishment for four equally guilty persons at one sitting, that after fixing the penalty for the first three at death, there was a great reluctance to give the fourth a lesser sentence. Such reluctance alone might arbitrarily mandate a fourth death penalty for the particular crime regardless of the guilty person’s personal history. This impediment to the individual exercise of discretion violates due process and the prohibition against arbitrary death sentences.

Such a scenario may well have occurred in the case at bar. In the sentencing phase appellant Clines was shown to have pleaded guilty in 1978 to burglary, a non-violent crime. No other convictions or felonious actions were shown to have been committed by him during this stage of the trial. The only other proof of a prior bad action, for which there was no conviction, came during the accusatorial phase of the trial when an accomplice gave uncorroborated testimony on a collateral matter. Yet, he, too, was given the death sentence.

For this reason I dissent from that part of the well written majority opinion which affirms the joint proceeding to fix the punishments at death. I concur in that part of the opinion affirming the life sentences for the aggravated robberies.

John I. Purtle, Justice, dissenting. I believe at least one of the appellants, Michael Orndorff, was prejudiced by the trial court’s refusal to give him a separate trial. To grant him a separate trial would have in no way selectively excluded him from culpability in regard to the crime for which he was convicted. In fact it seems to me that holding him to trial with the actual murderers practically insured his conviction. Guilt by association is a common human error and in this case I have no doubt it played a big part in the minds of the jury who meted out identical convictions and uniform penalties to all four appellants.

When each of the appellants attempted to place himself outside the bedroom where decedent was shot the result was that each defendant put before the same jury a defense inconsistent with the other defendants’ defenses.

The majority opinion seems to infer some type of guilt from some of the appellants’ failure to testify. If the trial court did this we would vote unanimously to reverse and remand. The trial court should have granted a severance.

A total of twelve peremptory challenges were allowed the four defendants. One of them did not get to exercise a single peremptory challenge. Had they been tried separately each would have been allowed twelve challenges. Therefore, these appellants were denied rights which are extended to others tried separately on identical charges. There is nothing to prevent a trial judge from allowing more than twelve peremptory challenges if fairness and impartiality demand it.

Furthermore, it was clearly prejudicial to allow evidence of crimes for which the appellants had not been convicted even though this was during the sentencing phase of the bifurcated trial. What happened to the old law that held every individual is presumed innocent? Soon it will be legal for the state to charge an accused of spurious crimes in order to help secure a conviction. For all we know none of the appellants were or will ever be found to have committed the alleged crime which was used during the sentencing phase.

I am still of the opinion that a death qualified j ury is not comprised of a cross-section of the population as required by the Constitutions of Arkansas and the United States. It appears to me that there is a misunderstanding of the Witherspoon doctrine when prospective jurors are excluded because of religious or moral scruples against the death penalty. Perhaps some member or members of this very court have religious or moral scruples against the death sentence, yet we affirm such sentences if we find no reversible error. One who does not believe in the death sentence may honestly and conscientiously vote for such a sentence in upholding the law. For these reasons I must dissent to the majority opinion.


author: Per Curiam.

text:
    Issac WESSON v. STATE of Arkansas
    655 S.W.2d 401
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983

      William R. Simpson, Jr., Public Defender, by: Kelly Carithers, Deputy Public Defender, for appellant.

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

On January 17,1983, we denied appellant Issac Wesson’s pro se motion for belated appeal because certain questions of fact could not be resolved from the motion and trial counsel’s affidavit in response to it. First, it could not be determined whether appellant was informed of his right to appeal; and, secondly, if he were so informed, whether he waived that right by failure to communicate to counsel his desire to appeal. The denial was without prejudice to his applying to the trial court for an evidentiary hearing on the two questions. We said that if the trial court’s ruling was favorable to him, appellant would be permitted to file a second motion for belated appeal in this court with the trial court’s findings and conclusions and the record of the hearing as support for the motion. The evidentiary hearing was held on April 18, 1983. The trial court’s ruling was favorable, hence, appellant’s second motion for belated appeal is now before us.

The trial court concluded that appellant had been told in accordance with A.R.Cr.P. Rule 36.4 that he had the right to appeal and that he had made known to counsel his desire to appeal. We agree with those findings. Appellant testified that after he was informed of his appeal right, he requested that retained counsel Lynn Davis perfect an appeal. Mr. Davis testified that he recalled an appeal bond being set but could not recall appellant’s specifically saying that he wished to appeal. He testified that if appellant had asked him to appeal, he would probably have told him to get another attorney.

When an attorney represents a defendant at trial, he is obligated to continue to represent him on appeal if the defendant makes known his desire to appeal, unless the attorney is permitted by the trial court or this court to withdraw. A.R.Cr.P. Rule 36.26; Ellis v. State, 276 Ark. 560, 637 S.W.2d 588 (1982). The record of the hearing reflects that an appeal bond was set, from which it may be inferred that appellant knew he could appeal and desired to do so. Counsel’s claim that he could not recall appellant’s asking him to appeal does not excuse him from pursuing the appeal.

Appellant has furnished this court with an affidavit attesting to his indigency. As an indigent, he is entitled to have the record on appeal prepared at public expense. A writ of certiorari is issued to prepare it. Mr.. Davis has never been relieved as counsel in this case. He therefore remains attorney-of-record, and he shall be responsible for representing appellant on appeal.

A copy of this opinion shall be forwarded to the Committee on Professional Conduct. See Blakely v. State, 279 Ark. 141, 649 S.W.2d 187 (1983); Ellis, supra.

Motion granted.


text:
    Gary YENT v. STATE of Arkansas
    655 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered July 5, 1983

      Law Office of W. B. Putman, by: E. E. Maglothin, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Following our denial of a motion for a rule on the clerk to permit the record in this case to be filed out of time. Yent v. State, 279 Ark. 268, 650 S.W.2d 577 (1983), the appellant’s attorney, E. E. Maglothin, Jr., has filed a petition for a belated appeal, assuming full responsibility for the error. Pursuant to our per curiam order concerning such appeals, 265 Ark. 964 (1979), the motion for a belated appeal is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.