text:
    Hugh WILLIAMS v. STATE of Arkansas
    CR 90-195
    800 S.W.2d 713
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Clark & Adkisson, for appellant.

      Steve Clark, Att’y Gen., by: Kelly K. Hill, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Hugh Williams, was convicted of possession of cocaine with intent to deliver and second degree escape. He was sentenced to forty years and five years imprisonment, respectively, and a fine of $10,000.

On appeal, Williams contends that 1) the trial court erred in refusing to grant a motion for mistrial after he was brought before the prospective jury in shackles, and 2) the trial court erred and abused its discretion in allowing the state to use a prior felony conviction to impeach his credibility. We find no merit in either argument and affirm.

On the morning of trial, and prior to selection of the jury, Williams was brought into the courtroom in restraints. The trial judge was informed of the fact and immediately ordered them removed.

The trial proceeded and after nearly all of the state’s witnesses had testified, Williams’ attorney moved for a mistrial, contending that it was prejudicial for Williams to have been seen by the jurors wearing restraints. The court denied the motion as untimely and because there was no proof that any of the thirteen jurors actually selected had seen Williams “shackled.”

The trial court’s ruling was correct. The motion was not made until well into the trial, nearing the close of the state’s case. It is well established that in order to preserve an argument for appeal, the appellant must make an objection at the first opportunity. A.R.Cr.P. Rule 36.21; Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990); Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984).

Notwithstanding his failure to make a timely motion for mistrial, Williams has not demonstrated prejudice. See Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990). We have held that it is not prejudicial, per se, when a defendant is brought into court handcuffed and that the defendant must affirmatively demonstrate prejudice. See Johnson v. State, 261 Ark. 183, 546 S.W.2d 719 (1977); Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). Williams has offered no proof that any of the jury members actually saw him in restraints and, in fact, in his motion for mistrial, Williams’ attorney stated, “I do not know if any of the jurors saw [Williams] ... If he was observed by jurors, I would move for a mistrial.”

This case is similar to Hill v. State, supra, where, in upholding the trial court’s denial of a mistrial, we stated:

In this case, from the record of the in-chambers conference on the mistrial motion, it is not evident there was anything but a brief, inadvertent sighting by some of the jurors. The appellant offered no proof of any jurors having actually seen the appellant, nor was any voir dire requested to substantiate any allegation of prejudice. There was no affirmative showing of prejudice by the appellant.

Furthermore, as in Johnson v. State, supra, Williams was charged with escape (in this case from the county jail as opposed to the state penitentiary in Johnson) and was an inmate at the state prison at the time of trial. All of these facts were revealed to the jury during the course of trial and, thus, any prejudice which may have resulted from Williams having been seen in restraints would be rendered harmless.

A motion for a mistrial is an extreme and drastic remedy which will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). Given the facts before us, we cannot say the court’s denial of a mistrial was in error.

We also find no error in the trial court’s ruling that the state would be permitted to impeach Williams with a prior felony conviction.

After moving for a mistrial, Williams’ counsel informed the court that he “believe [d] [they were] gonna have Mr. Williams testify” and asked the court “not to allow Mr. Foster (the prosecutor) to impeach him with that prior felony due to the prejudicial effect that it would have on Mr. Williams.” Noting that Williams’ counsel stated in opening argument “you are probably going to hear evidence today that a year or so back Mr. Williams had a conviction for breaking into a car,” the court responded that defense counsel had “opened the door to it” and that “if the state does introduce [prior convictions], I’m going to allow it.”

Later, Williams testified on direct examination that he had “trouble before on a breaking or entering and theft by receiving” and that he “broke into a car.” In addition, he testified on cross-examination that he had a previous conviction for breaking and entering and theft of property.

Rule 609(a) of the Arkansas Rules of Evidence provides as follows:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one (1) year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.

Inasmuch as Williams’ counsel alluded to his prior convictions in his opening statement and the appellant testified to his various criminal involvements during direct examination, it would be a vain and useless act for the trial court to weigh the probative value of admitting this evidence on cross-examination under Rule 609(a).

Furthermore, where a defendant, himself, initiates discussion of a certain subject, he opens the door to a line of questioning by the state. See generally Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986); Thompson v. State, 298 Ark. 502, 769 S.W.2d 6 (1989).

On the basis of the foregoing reasons, we affirm.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    IN THE MATTER OF Cindy Lee ALLEN
    90-288
    800 S.W.2d 715
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Bill B. Wiggins and Paul L. Guiffre, for appellant.

      Friday, Eldredge & Clark, by: Walter A. Paulson II, for amicus curiae Arkansas Counsel of Community Mental Health Centers.

      David P. Saxon and Daniel Shue, for appellee.
   Robert H. Dudley, Justice.

Cindy Lee Allen’s father petitioned the probate court to have her involuntarily committed to the State Hospital. See Ark. Code Ann. § 20-47-207 (Supp. 1989). The court determined that there was probable cause to believe that she should be committed, see Ark. Code Ann. §§ 20-47-207 and -209, and ordered her detained for an examination and a hearing. See Ark. Code Ann. § 20-47-213. She was taken to the Western Arkansas Counseling and Guidance Center, Inc. for the examination. The next day subpoenas were issued for Western Arkansas’s executive director and medical director to testify at the commitment hearing.

At the commitment hearing, the petitioner was represented by a deputy prosecuting attorney, see Ark. Code Ann. § 20-47-208, and Ms. Allen, the alleged mentally ill person, was represented by court appointed counsel, see Ark. Code Ann. § 20-47-212. The witnesses from Western Arkansas testified that Ms. Allen needed to be hospitalized, but that, at that time, there was no space available for her in the State Hospital. There was a dispute about interpreting the applicable statutes, and the trial court, on its own motion, ordered Western Arkansas to deposit $10,000.00 into the registry of the court to pay the costs of private hospitalization and treatment for Ms. Allen. Subsequently, the court ordered money paid from the deposit. No pleading had been filed against Western Arkansas. It had not been made a party to this action, and no summons had ever been served upon it. In short, it had no notice whatsoever that a judicial proceeding was being had against it. It appeals from the judgment.

Service of process is necessary to give a court jurisdiction, or power, over a defendant. Pennoyer v. Neff, 95 U.S. 714 (1877); Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). Here, there was no notice and the probate court never acquired jurisdiction over Western Arkansas. The appearance of Western Arkansas’s executive director and medical director as witnesses in the involuntary commitment proceeding did not constitute a waiver of notice in an indemnity proceeding against the corporation.

No pleading or process made Western Arkansas a party. Our general rule is that this court cannot act upon an appeal taken by one not a party to the action below. Rather, relief must be had by way of a collateral attack upon the judgment. Quattlebaum v. CBM and Gray, 252 Ark. 610, 480 S.W.2d 339 (1972). This has long been our general rule. Frazier v. McHaney Receiver, 117 Ark. 394, 178 S.W. 419 (1915). However, there is an equally long recognized exception to the general rule for one pecuniarily affected by a judgment. In Arkansas State Hwy. Comm’n v. Perrin, 240 Ark. 302, 399 S.W.2d 287 (1966), we wrote: “As far back as 1897, in the case of Ouachita Baptist College v. Scott, 64 Ark. 349, 42 S.W. 536, the Arkansas Supreme Court recognized the right of those interested, i.e. pecuniarily affected to perfect an appeal where action had been taken without notice to the one complaining.” Id. at 305, 399 S.W.2d at 290. We have not always followed the exception, see Department of Human Serv. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990), but we have never intended to overrule it. Accordingly, because Western Arkansas is pecuniarily affected by the decree, we do not dismiss the appeal, and we hold that the judgement against Western Arkansas is void.

We do not reach the point of appeal dealing with the interpretation of the commitment statutes.

Reversed and remanded for proceedings consistent with this opinion.


text:
    B.A. McINTOSH, Pulaski County Assessor and Ken Taylor, Pulaski County Collector v. SOUTHWESTERN TRUCK SALES
    90-66
    800 S.W.2d 431
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990
    [Rehearing denied January 22, 1991.]

      Larry D. Vaught, Pulaski County Civil Attorney, by: Nelwyn Davis, for appellant.

      Homer Tanner, for appellee.

      Corbin and Brown, JJ., not participating.

   Robert H. Dudley, Justice.

The appellee taxpayer, Southwestern Truck Sales, Inc., filed a complaint in Chancery Court of Pulaski County asking that B.A. McIntosh, the Pulaski County Assessor, and Ken Taylor, the Pulaski County Collector, be enjoined from taking any further action to collect taxes from the taxpayer for 1986. The county officials filed a motion to dismiss because of lack of subject matter jurisdiction in chancery court. The taxpayer filed a motion for summary judgment. The chancellor denied the county officials’ motion to dismiss for lack of subject matter jurisdiction and granted summary judgement for the taxpayer. The chancellor erred in exercising jurisdiction and, accordingly, we reverse and dismiss.

We must first address a procedural matter. The county officials argue that the taxpayer’s brief must be stricken because Homer Tanner, the taxpayer’s attorney, submitted to the trial court a twenty-five paragraph affidavit in support of the motion for summary judgement. The affidavit is a sworn statement of facts. When the affiant is an attorney in the case, and the affidavit is submitted in support of a motion, whether attached to the motion itself or to the brief, it is tantamount to the attorney testifying. We have repeatedly admonished members of the bar that an attorney cannot serve as both a witness and an advocate in the same action. Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983). Neither can an attorney represent a party on appeal if the attorney testified below. Id. When an attorney serves as both witness and advocate in the same action, however, that fact alone does not require automatic reversal and dismissal of a case, as argued by appellants. In Calton Properties, Inc. v. Ken’s Discount Bldg. Materials, Inc., 282 Ark. 521, 669 S.W.2d 469 (1984), we clearly stated that the attorney’s affidavit was not evidence and that we would not consider it. Without it, there was simply no evidence at all which would have allowed this Court to affirm. Consequently, the judgement was reversed and the case dismissed. Had there been other evidence upon which this Court could have affirmed, however, it would have done so. Accordingly, it was wrong for Mr. Tanner to serve as a witness and an attorney, and we will not consider the affidavit as evidence; however, we refuse to strike the taxpayer’s brief and automatically reverse and dismiss the case.

We consider the case on the jurisdictional issue, and reverse and dismiss because the chancery court was without jurisdiction. The taxpayer owned two lots, designated Lot A and Lot B of the Inmon Addition to North Little Rock. A building was built on Lot A. Lot B remained unimproved. The taxpayer received three tax bills for 1986, just as it had in 1985. According to the affidavit of Buell James, Deputy Assessor, and the officers’ responses to requests for admission, one tax bill was for the land of Lot A, one was for Lot B, and the third tax bill, designated with the letter “E,” was for the improvements on Lot A. The 1985 tax bills were paid. In the process of selling Lots A and B, the taxpayer delivered all three 1986 tax bills to its attorney who was also serving as the closing agent for the sale. He paid two of the 1986 tax bills, but refused to pay the third one which, according to the officials, covered the building on Lot A. He contended that it was for a nonexistent Lot E.

The county courts have exclusive original jurisdiction in all matters relating to county taxes. Ark. Const., art. 7, § 28; Burgess v. Four States Mem. Hosp., 250 Ark. 485, 465 S.W.2d 693 (1971). Yet, it is undisputed that the taxpayer did not pursue any action with the county Board of Equalization. Rather, it went to chancery court and sought an injunction relying upon Ark. Code Ann. § 16-113-306 (1987),' which provides in pertinent part:

The judge of the chancery court for any county may grant injunctions and restraining orders, in all cases of illegal or unauthorized taxes and assessments by county, city, or other local tribunals, boards, or officers.

The key words of the statute are those which have been emphasized above. There is no doubt that a court of equity may grant relief against a void or illegal tax assessment. Burgess v. Four States Mem. Hosp., supra. However, in order for the chancery court to have subject matter jurisdiction, it must involve illegal or unauthorized taxes and assessments. Neither is present in the instant case. That is, it cannot be disputed that the building located on Lot A is assessable. Therefore, at most, there may have been a flaw in the assessment or collection procedures concerning the manner in which the building was assessed as a parcel separate from Lot A itself. Even if that procedure were flawed, and we are not holding that it is, that still does not make the assessment or the exaction illegal or unauthorized. Schuman v. Ouachita County, 218 Ark. 46, 234 S.W.2d 42 (1950). See also “Taxpayers’ Suits to Prevent Illegal Exactions in Arkansas,” 8 Ark. L. Rev. 129 (1954). Without either of those jurisdictional prerequisites, the chancery court was without power to hear the case. Since the chancery court was without jurisdiction to hear the case we must reverse ánd dismiss.


author: Steele Hays, Justice.

text:
    Lowell CHRISCO v. SUN INDUSTRIES, INC.
    90-51
    800 S.W.2d 717
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Matthews, Sanders, Liles & Sayes, by: Gail O. Matthews, for appellant.

      Goodwin, Hamilton, Moore & Colbert, by: Ray A. Goodwin, for appellee.
   Steele Hays, Justice.

The sole issue on appeal is whether the trial court abused its discretion in awarding an attorney’s fee, under Ark. Code Ann. § 16-22-308 (Supp. 1989), of only $25,000.00 in a civil action involving breach of contract.

On October 4,1985, the appellant, Lowell Chrisco, executed a sales agency agreement with the appellee, Sun Industries, Inc. (Sun). On January 14, 1988, Sun notified Chrisco that it was cancelling the agreement.

Chrisco filed suit on April 4, 1988, in the Circuit Court of Craighead County alleging that the termination was without proper cause and seeking past and future compensation and attorney’s fees. Sun initially denied liability, but on November 10, 1988, it deposited $293,284.64 into the court registry as the amount of Chrisco’s lost commissions as of that date and offered to reinstate Chrisco.

A jury was impaneled on December 19, 1988, and, after opening statements, the case was partially settled: Sun agreed to pay Chrisco $625,000.00 and only the matter of attorney’s fees remained to be decided by the court.

After the jury was discharged, the trial court accepted oral statements from Chrisco’s counsel on their fee arrangements, hours, and expenses. The trial court then announced from the bench that it would award a fee of $25,000.00. No judgment was entered incorporating this award, and Chrisco filed a motion for the trial court to reconsider its award. A hearing was held on October 17,1989, and the trial court denied Chrisco’s motion and subsequently entered a judgment awarding a fee of $25,000.00 on November 15, 1989.

Chrisco appeals and asserts that the trial court abused its discretion in awarding an attorney’s fee of only $25,000.00.

Our general rule relating to attorney’s fees is well established and is that attorney’s fees are not allowed except when expressly provided for by statute. Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988).

Section 16-22-308 addresses attorney’s fees in certain civil actions and provides in pertinent part as follows:

In any civil action to recover on . . . breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.
(Emphasis added.)

The word “may” is usually employed as implying permissive or discretional, rather than mandatory, action or conduct and is construed in a permissive sense unless necessary to give effect to an intent to which it is used. Dunn v. Dunn, 222 Ark. 85, 257 S.W.2d 283 (1953). We find, within the context in which the word “may” is employed in this case, that section 16-22-308 is permissive and discretional with the trial court.

Additionally, although there is no fixed formula in determining the computation of attorney’s fees, the courts should be guided by recognized factors in making their decision, including the experience and ability of the attorney, the time and labor required to perform the legal service properly, the amount involved in the case and the results obtained, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, whether the fee is fixed or contingent, the time limitations imposed upon the client or by the circumstances, and the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. State Farm Fire & Casualty Co. v. Stockton, 295 Ark. 560, 750 S.W.2d 945 (1988); Southall v. Farm Bureau Mut. Ins. Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984); New Hampshire Ins. Co. v. Quilantan, 269 Ark. 359, 601 S.W.2d 836 (1980).

We have also previously noted that due to the trial judge’s intimate acquaintance with the record and the quality of service rendered, we usually recognize the superior perspective of the trial judge in assessing the applicable factors. Accordingly, an award of attorney’s fees will not be set aside absent an abuse of discretion by the trial court. State Farm Fire & Casualty Co. v. Stockton, supra.

In this case, the underlying breach of contract issue was relatively simple in nature, and Sun ultimately admitted liability before the trial began; the case was settled after opening statements; the settlement included matters not before the trial court; Chrisco’s lead attorney, Mr. Gail Matthews, stated that he had spent 200 to 300 hours on the case and his hourly rate was $90.00; Chrisco had a one-third contingency contract with Mr. Matthews, who received $208,333.33 of the settlement as attorney’s fees; Mr. Matthews stated that any court award would go to Chrisco as augmentation of his recovery; Mr. Matthews’s association of counsel, whose fee of $37,581.80 was paid from Matthews’s contractual arrangement with Chrisco, was an independent decision; and defense counsel stated that his hourly rate was $100.00 per hour, and his fee would not be in excess of $30,000.00.

Appellant argues with considerable force that the trial judge conceded that his original fee allowance was inadequate, but that because appellee had relied on it it would be wrong to change the award. Certainly his remarks can be so construed, but we also note that he professed to remember the case quite well and felt “fairly comfortable” with the amount of the fee at the time it was set.

In spite of his equivocal remarks, we are persuaded the trial court considered the pertinent facts in arriving at its award of $25,000. Notwithstanding the reservations later expressed, we find under the circumstances the trial court did not abuse its discretion in fixing the award.

Affirmed.


author: Steele Hays, Justice. David Newbern, Justice, David Newbern, Justice. Tom Glaze, Justice,

text:
    A.P. COX v. John LINEBERGER
    90-81
    801 S.W.2d 290
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990
    [Supplemental Opinion on Denial of Rehearing February 18, 1991.]

      Young, Patton & Falsonv, Damon Young; and Autrey & Autrey, by: L. Wren Autrey, for petitioner.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.

      Justice Glaze’s dissent can be found at 805 S.W.2d 947.

      Dudley, Hays, and Glaze, JJ., dissent.

   Steele Hays, Justice.

Petitioner A.P. Cox, Jr. contends he has been denied a speedy trial and brings this original action for prohibition. Cox stands charged in Miller Circuit Court with the offense of theft by receiving (case No. CR -89-630-3). When the trial court denied his motion to dismiss for want of a speedy trial, Cox sought a writ of prohibition in this court. We granted a temporary writ and requested briefs under Rule 16. Having considered the arguments, we hold the petitioner has not been denied a speedy trial.

Cox was originally charged with theft by receiving on August 21, 1987, (case No. CR-87-347). He was arrested and released on a property bond. The case was twice continued at the request of the defense and at least once at the request of the state. On the morning of September 19, 1989, before the commencement of trial, the state asked leave to introduce certain evidence which had not been furnished to the defense under a discovery order. When that request was refused the state moved for a continuance and when that, too, was denied, the state obtained permission to nolle prosequi. An identical information was filed later that same day (CR 89-630-3).

In July of 1987 A.R.Cr.P. Rule 28.1 was amended to reduce the speedy trial period from eighteen months to twelve months for defendants charged after October 1,1987. On October 29,1989, Cox asked the trial court to dismiss case No. CR-530-3 for want of a speedy trial, arguing that under A.R.Cr.P. Rule 28.1, as amended, he was entitled to a trial within twelve months from his initial arrest on August 24, 1987. The motion was heard on November 27,1989, and the trial court denied the motion, finding that the speedy trial period applicable to Cox was eighteen months, that November 15,1988, to September 19,1989, was an excludable period and that only fifteen months of trial time had expired. Cox renews his argument by this petition for prohibition.

While Rule 28.1 (c) states that a twelve month period applies to anyone charged after October 1,1987, it makes no provision for the situation we now face — a defendant charged a second time for the same crime after a nolle prosequi. Cox was charged both before and after the rule change became effective. But nothing in the rule indicates which of the two charges should be treated as the triggering event for determining the time for trial. Consequently, in that situation there is ambiguity requiring that we construe the rule.

Cox cites Asher v. State, 300 Ark. 57, 776 S.W.2d 816 (1989), Washington v. State, 273 Ark. 82, 617 S.W.2d 3 (1981), and Abernathy s .State, 278 Ark. 250,644S.W.2d 590 (1983). In Washington, the trial court dismissed the charges because Charles and C.L. Washington were not brought to trial within three terms of court (the equivalent of eighteen months). On appeal the state argued that the time between an order of nolle prosequi and the refiling of charges should have been excluded. We rejected that argument, refusing to permit the state to use the device of nolle prosequi to subvert the speedy trial proviso, absent a showing of good cause. Here, the nolle prosequi was not taken for the purpose of tolling the speedy trial rule; the information was refiled within a matter of hours, and did not affect the time for trial. In Abernathy, speedy trial was not an issue; the state had nolle prossed a first degree murder charge and refiled a capital murder charge. Citing Washington v. State, supra, Abernathy argued the nolle prosequi permitted indirectly what could not be done directly. We rejected the argument, noting that the procedure in Washington was in itself perfectly permissible, “it was only because the results of that procedure worked to prejudice [Washington] that we found it to be improper.” In short, Washington and Abernathy have only distant resemblance to the case at bar.

The Asher case has similarities, but material differences as well. Asher was arrested on February 19,1987, but not charged until October 7,1987, after the amendment reducing the time had taken effect. A majority of this court held that the rule as amended was unambiguous — that Asher was charged after October 1, 1987, and, under Rule 28.2 was entitled to be tried within twelve months from the date of his arrest. In Asher there was only one charge and one arrest. Here there were two of each, yet the petitioner wishes to couple the charge in case No. CR-89-630-3, which occurred after October 1, with the arrest in case No. CR-87-347, which occurred before October 1. He cannot have it both ways. The evident fact is, if the charge and arrest in No. CR-87-347 are used, the time for speedy trial is eighteen months and it was not exceeded. If the charge and arrest in No. CR 89-630-3 are used, the time for speedy trial is twelve months and it was not exceeded. Under either stand petitioner has not been deprived of a speedy trial.

Moreover, the interpretation Cox proposes leads to an illogical result. Cox maintains that we must look to the charge in case No. CR-89-630-3, which occurred after October 1, 1987, and to the date of arrest in case No. CR-87-347, which occurred on August 24, 1987, and by that theory the time for speedy trial had run some thirteen months before the information in CR-89-630-3 was even filed. We have no hesitancy in rejecting that as not what was intended by the 1987 amendment.

Writ of prohibition denied, temporary writ dissolved.

Holt, C.J., and Newbern and Price, JJ., dissent.

David Newbern, Justice,

dissenting. The court has obfuscated a simple case by saying that Ark. R. Crim. P. 28.2 makes no provision for the situation in which one is charged again after the first charge is nolle prossed. All one need do is read the rule. There is no doubt that Cox is to be tried on the second charge. The first one no longer exists. The rule, subsection (a), provides that the time for trial runs “from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense . . . then the time for trial shall commence running from the date of arrest.” Cox was arrested and held “on bail or lawfully at liberty” from August 21, 1987. More than 12 months have passed even counting the excluded periods.

803 S.W.2d 555

The majority opinion states that Washington v. State, 273 Ark. 82, 617 S.W.2d 3 (1981), only distantly resembles this case because in the Washington case there was prejudice to the defendants resulting from the passage of time. I do not know how we can overlook the fact that in this case the only reason the charge was nolle prossed was the failure of the state to grant Cox’s right to possession of certain evidence. Judge Lineberger knew the speedy trial issue would present a problem and warned the prosecutor of it when the prosecutor was considering nolle prosequi. The state made its choice in the face of the rule.

Carried to its logical end, this decision will allow the state to wait until after the deadline imposed by the rule, nolle prosequi the charge, and then claim the time begins to run with the new charge as long as the state has some reasons for doing so which is not solely to avoid the speedy trial rule as in the Washington decision.

More than 12 months passed. The rule is clear on when the time begins to run. I respectfully dissent.

Holt, C.J., and Price, J., join in this dissent.

SUPPLEMENTAL OPINION ON REHEARING

FEBRUARY 18, 1991

Autrey & Autrey, by: Wren Autrey, for appellant.

Mary B. Stallcup, Att’y Gen., by: J. Denhammcclendon, Asst. Att’y Gen., for appellee.

David Newbern, Justice.

In his petition for rehearing, A.P. Cox, Jr., has pointed out that in denying his petition for a writ of prohibition the court created an exception to Ark. R. Crim. P. 28.2., an exception which imposed unfair prejudice in his case. As he states, the Court’s original opinion was premised on the fact that the Rule does not make a provision for the case in which a charge is filed, the case is nolle prossed, and the charge is filed again. Our original opinion, in effect, wrote a new provision. It should not have done so. It was a mistake of law for the Court not to follow the Rule as written. Rehearing is granted, and the writ of prohibition is granted.

Cox was twice arrested, and twice charged. His original charge was dismissed by the prosecution. He was rearrested and recharged after the 12-month speedy trial period had gone into effect. Rule 29.2.(a) provides that the time commences running:

from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest;. . . .

Cox was arrested first August 24,1987, and released on bail that day. He clearly was “prior to . . . [the time of the charge] . . . continuously held ... on bail or lawfully at liberty to answer for the offense” after that date. The charge upon which he was to be tried was dated September 19, 1989, and he was rearrested on that date. The fact that Cox was rearrested does not change the fact that he was on bail for over two years and that more than 12 months of that time was clearly chargeable to the State.

The 12-month speedy trial period applies because the charge on which he was to be tried was filed after October 1,1987. Ark. R. Crim. P. 28.1.; Asher v. State, 300 Ark. 57, 776 S.W.2d 816 (1989).

The facts of this case demonstrate the unfairness of allowing the prosecution to evade the Rule by nolle prosequi to cover a mistake in failure to comply with discovery orders. A person could be under a criminal charge for a time far in excess of that permitted by the Rule, and simply by dismissing and charging him or her again, the prosecution could get a new lease on the life of the case. The provision of the rule causing the speedy trial time to run from the date of arrest where one is incarcerated or free on bail or otherwise lawfully at liberty while under charges is obviously designed to prevent such an occurrence.

Rehearing granted. Writ of prohibition granted.

Dudley, Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. I dissent. Neither the petitioner nor the majority court offers anything new to require reversal of this court’s earlier decision. Admittedly, the makeup of this court is different than when it first decided this case on December 21, 1990. Nonetheless, Ark. Sup. Ct. R. 20(g) provides in relevant part that “the petition for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain ... [T]he brief on rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court.”

Here the petitioner offers absolutely nothing new in legal or factual argument that this court did not already studiously and carefully consider. After all, the court was merely called upon to construe or interpret one of its own rules, A.R.Cr.P. Rule 28, and this court fully understood the legal issue argued then that arose out of the fact that petitioner’s case was uniquely affected by our amending Rule 28 while his case was pending, dismissed and refiled. Thus, my first point of disagreement with the new majority court is that contrary to established law, it now recognizes petitioner’s simple reargument of his case as a ground for rehearing.

My next point of disagreement is that this court’s December 21, 1990 decision was absolutely correct. I will not again detail this court’s rationale for reaching the decision it did, since the reader can satisfy himself or herself by a review of that court’s opinion at Cox v. State, 304 Ark. 231, 801 S.W.2d 290 (1990). However, I do point out that the petitioner’s own argument to dismiss his case for violation of the Speedy Trial Rule 28 is based on inconsistent and conflicting reasoning. Petitioner was charged on August 21, 1987, and this is the date from which the Speedy Trial Rule commenced — then Rule 28 provided for an eighteen-month period. Given the undisputed excludable events that tolled or extended the eighteen-month period, the state still had three months to prosecute its charge against petitioner when it nolle prosequi its case on September 19,1989. The state refiled the case on the same day the case was dismissed, therefore when the trial court set the case for trial on December 4,1989, the state still was within the original eighteen-month period.

As has been pointed out, this court, on October 1, 1987, changed its Rule 28, reducing the Speedy Trial period to twelve months. Petitioner filed his petition for writ of prohibition arguing the shorter twelve-month period should apply but it should commence — not from the new September 19, 1989 refiling date when the new twelve-month period was in effect — but instead from the original August 21, 1987 charge when the eighteen-month period was in effect. In sum, petitioner is trying to have his cake and eat it, too. When applying the Rule 28 eighteen-month period in effect when petitioner was charged on August 21, 1987, no one disputes, given excludable toll periods, the December 4, 1989 trial date was within the eighteen-month period. By the same token, applying the amended Rule 28 twelvemonth period in effect when petitioner was recharged on September 19, 1989, again, no one disputes the December 4, 1989 trial date was well within the reduced twelve-month period.

The only way petitioner can prevail in having his case dismissed is to apply the illogical reasoning that he is entitled to commence the new or amended twelve-month speedy trial time from the original charge date of August 21, 1987 — the date when the eighteen-month period was in operation. Why the present majority court wishes to give Rule 28, as amended, such a contorted interpretation escapes me.

Here, petitioner was not prejudiced. When he was charged on August 21, 1987, he knew the state had eighteen months to bring his case to trial. That eighteen-month period remains the one the state and the trial court used when setting the December 4,1989 trial. That period did not expire, thus the petitioner is not entitled to dismissal of his theft by receiving charge.

This court chose to amend Rule 28 to reduce the Speedy Trial period, but we should not attempt — by what I perceive as a distorted interpretation of Rule 28 — to change the rule in midstream for the parties and trial courts that were relying on Rule 28 as it read when petitioner was first charged. If anyone was prejudiced in this case, it was the state and the trial court that were following (most reasonably I suggest) the rule in effect when petitioner was first charged. For these reasons, I disagree with this court’s decision which effectively dismisses the state’s case against the petitioner.

Hays, J., joins this dissent.


text:
    Floyd D. STURGIS, a/k/a Drew Sturgis and Venessia Rae Sturgis v. The LEE APPAREL COMPANY, Inc.
    90-285
    800 S.W.2d 719
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Skokos, Coleman & Rainwater, P.A., by: Jay Bequette, for appellant.

      W.J. Walker, by: Kendall R. Black, for appellee.
   Steele Hays, Justice.

Floyd and Vanessia Sturgis appeal from a judgment awarded to The Lee Apparel Company, Inc. (Lee) for $44,038.48. Lee’s judgment was based on the amount of an insufficient check drawn on The Jean Joint of Mid-America, Inc., by Floyd Sturgis and on a balance due Lee for merchandise sold to that corporation.

On September 11, 1985, as an inducement to Lee to extend credit to The Jean Joint of Mid-America, Inc., Floyd and Vanessia Sturgis executed an agreement by which they personally guaranteed payment of all indebtedness incurred by The Jean Joint of Mid-America, Inc., owing to Lee. On May 4,1987, Floyd Sturgis wrote a check to Lee drawn on the account of The Jean Joint of Mid-America, Inc., in the amount of $20,336.41. The check was returned due to insufficient funds. Lee made demand for the payment on February 16, 1989.

When payment was not forthcoming Lee filed suit against the Sturgises for $39,703.57 ($20,336.41 due on the insufficient check and $19,367.16 for merchandise purchased on an open account). Pursuant to Act 66 of 1987 [Ark. Code Ann. §4-6-103 (1987)], Lee asked for twice the amount of the check.

The case was tried without a jury. After allowing a set-off of $18,001.50 for returned merchandise, the trial court awarded Lee a judgment which included double the amount of the insufficient check. The Sturgises have appealed, assigning error to several of the rulings of the trial court. We affirm the judgment.

The Sturgises submit that Act 66 is not applicable because the check was written in May whereas the act did not become effective until July. But this point was not preserved in the trial court and will not be considered here. The Sturgises submit that the doctrines of plain error and subject matter jurisdiction obviate the necessity of an objection before the trial court. But we do not recognize plain error [beyond the limited scope outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (Ark. App. 1980)], and we have not been shown how jurisdiction was lacking in this case. The Sturgises have offered no authority for their position and we are not aware of an instance where we have treated an improper application of a statute (alleged) as a jurisdictional issue.

Secondly, the Sturgises maintain that if the statute in question is applicable, they substantially complied by making restitution by returning merchandise purchased from Lee for which the check was given. However, the testimony supports a contrary conclusion. The returns were made before February 16, 1989, the date of Lee’s formal demand for payment, and Floyd Sturgis’s testimony supports an inference that the merchandise was returned because the stores were going out of business, not in restitution of the dishonored check. Even after the merchandise was returned, the Sturgises still had an outstanding account balance with Lee. The only way for the Sturgises to make restitution would have been to honor the check. Moreover, the restitution contemplated in Act 66 is in cash. The language is clear. After demand is made the payee has fifteen days “. . . to pay the holder of the check . . .the amount of the check. . . .” As we said in Townsend v. State, 292 Ark. 157, 160, 728 S.W.2d 516, 518 (1987), “This court has no authority to construe a statute that is plain and unambiguous to mean anything other than what it says.”

The Sturgises next argue the guaranty agreement did not extend to claims arising under Act 66. Therefore, they urge, the dishonored check should be an obligation of The Jean Joint of Mid-America, Inc., which was not made party to this action. However, we think the language of the guaranty itself answers that contention. By its terms, the Sturgises, as individuals, agreed “to make prompt payment ... of all sums owed ... on said account or accounts and of any and all other obligations of every kind and character arising or evidenced, and also of any and all renewals or extensions. . . .” (Emphasis added.)

“Although it is true that a guarantor is entitled to have his undertaking strictly construed and cannot be held liable beyond the strict terms of his contract, a guarantor is nevertheless bound by the clear wording of his agreement.” Lindell Square Limited Partnership v. Savers Federal Savings and Loan Association, 27 Ark. App. 66, 71, 766 S.W.2d 41, 44 (1989).

Nor do we find merit in the final point. Mr. and Mrs. Sturgis owned the stock of two corporations, The Jean Joint, Inc. and The Jean Joint of Mid-America, Inc. Their personal guaranty covered only the obligations of The Jean Joint of Mid-America, Inc. They contend that while their personal guaranty secured payment of all indebtedness of The Jean Joint of Mid-America, Inc., the debts in question are debts of The Jean Joint, Inc. Granted, there was evidence that some invoices were addressed to The Jean Joint, Inc., rather than to The Jean Joint of Mid-America, Inc. But Floyd Sturgis conceded that billing invoices which once read The Jean Joint of Mid-America, Inc., were later shortened to The Jean Joint, Inc. The change in the wording of the invoices does not change the fact The Jean Joint of Mid-America, Inc. was receiving the merchandise. Floyd Sturgis also testified that all the returned merchandise came from The Jean Joint of Mid-America, Inc. Too, the check executed to pay the debts in question was drawn on The Jean Joint of Mid-America, Inc., and in a bankruptcy petition The Jean Joint of Mid-America, Inc., listed these liabilities as its own. The trial court heard this testimony and concluded that The Jean Joint of Mid-America, Inc. was the debtor. Findings of fact by trial court will not be set aside unless clearly erroneous. Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983). Floyd and Vanessia Sturgis have not shown the trial court’s findings were erroneous and therefore the judgment is affirmed.


text:
    James Daniel TOWE v. STATE of Arkansas
    CR 90-161
    801 S.W.2d 42
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Person & Hughes, by: R. Paul Hughes III, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This appeal from a conviction for delivery of controlled substances presents two arguments for reversal: violation of speedy trial and erroneous admission of evidence.

Appellant James Daniel Towe was arrested and charged with delivery of controlled substances in Sebastian County, Arkansas, on January 19,1989, in two cases (CR-89-61 and CR-89-62). This appeal deals only with case No. CR-89-61.

While case No. CR-89-61 was awaiting trial, the state and appellant reached a plea agreement conditioned on the appellant giving a truthful statement to the police in connection with an unsolved murder, and on November 17,1989, appellant entered a plea of guilty. The agreement did not materialize, and on November 20,1989, appellant moved to withdraw the guilty plea, and the state did not object. On December 18, 1989, the trial court granted the motion, and appellant was tried on March 21, 1990, found guilty and sentenced as an habitual offender to forty years in the Arkansas Department of Correction.

Appellant first argues the trial court erred in denying his motion to dismiss on the basis of a speedy trial violation, contending that he was not tried within twelve months as required by A.R.Cr.P. Rule 28.1. However, the state correctly points out that Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989), disposes of the argument.

In Kennedy, the petitioner argued speedy trial based on a lapse of twenty-four months, but he had pled guilty and even though the plea was later withdrawn, a plea of guilty waives a number of significant rights, including the right to a speedy trial. Hallv. State, 281 Ark. 282, 663 S.W.2d 926 (1984). We looked to A.R.Cr.P. Rule 28.2(c), which defines when time begins to run in an analogous situation:

(c) if the defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, the time for trial shall commence running from the date of mistrial order granting a new trial or remand.

We then said:

We hold that an order allowing the withdrawal of a plea of guilty as analogous to an order granting a new trial, and the time for a trial begins to run anew after an order is entered allowing the withdrawal of a guilty plea. [Therefore, in that case, only eight months had run.]

Applying of the rule in Kennedy to this case, appellant’s time for trial began anew after his guilty plea was withdrawn so that only four months had elapsed at the time of trial.

Secondly, appellant argues the trial court erred in admitting testimony from a prior trial. In October 1989, appellant was tried and convicted in Crawford County on charges of possession with intent to deliver a controlled substance. At that trial, testimony was given by appellant and by an officer involved in undercover sales. Appellant asserts he elected to testify in that trial because of the officer’s testimony. Towe appealed his Crawford County conviction to the Arkansas Court of Appeals where the case awaits submission. (Towe v. State, No. CACR 90-153). In the trial of the case now before us, in Sebastian County, the state was permitted over appellant’s objections to introduce this testimony from the Crawford County trial.

Appellant maintains it was error to admit certain significant portions of the officer’s testimony on the basis of A.R.E. Rule 403 and 404, dissimilarity of the offenses, and hearsay. Because of these errors, he contends his own testimony in the Crawford County trial court cannot be used in the Sebastian County trial if the Court of Appeals reverses on these evidentiary points. Appellant relies on Harrison v. United States, 392 U.S. 219 (1968), but we do not regard that case as applicable.

In Harrison the introduction of an illegally obtained confession prompted the defendant to testify at trial. On appeal the confession was rejected, but the defendant’s testimony was not. On the second appeal, it was held that the defendant’s testimony from the first trial should not have been admitted in the second trial, not because the defendant’s testimony was the result simply of a trial error, but because it was the result of the illegal confession, and hence, “fruit of the poisonous tree.”

The case at bar is readily distinguishable because the errors were not constitutional in nature, as in Harrison, but were only evidentiary errors. We agree with the analysis of the Court of Appeals in Pool v. State, 29 Ark. App. 234, 780 S.W.2d 350 (1989), where the appellant sought to apply the Harrison rationale to his judicial confession. Pool argued the admission of evidence illegally obtained in violation of the Fourth Amendment was the initial illegality, and his testimony attempting to explain it was “fruit of the poisonous tree.” Assuming the initial illegality arguendo, the Court of Appeals refused to apply Harrison to the facts in Pool. It found the pivotal factor in Harrison was that the evidence impelling the judicial confession was itself a confession and that the Harrison court had “placed great emphasis on the powerful inducement to testify which arises when a defendant’s confession is introduced into evidence.”

In this case we are not dealing in any sense with Fourth Amendment considerations, but simply with conventional evidentiary issues. We conclude, as did the Court of Appeals in Pool, that Harrison is inapplicable to routine evidentiary rulings.

Appellant also argues the admission of this testimony in some manner violates his right against being put twice in jeopardy, prohibited by the Fifth Amendment. It is not clear how appellant’s Fifth Amendment rights were violated, but we decline to address the issue as we can find no objection before the trial court.

The judgment is affirmed.

       We dealt separately with case No. CR-89-62 in Towe v. State, 303 Ark. 441, 798 S.W.2d 56 (1990), resulting in the issuance of a writ of prohibition due to the state’s failure to provide a speedy trial.

       In Harrison, the question of the illegality of the confession — which was the trigger for excluding the defendant’s testimony — had been decided by the appeals court and the same case was then again being considered by the trial court. Here, there is no decision yet by the Court of Appeals on this matter, nor is it part of the same case. However we need not reach these factors today as the case is distinguishable on other grounds.


author: David Newbern, Justice.

text:
    Raymond L. DONATHAN v. Guy McDILL and Hot Springs Title Company
    90-270
    800 S.W.2d 433
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      J. Sky Tapp, for appellant.

      Kemp, Duckett, Hopkins & Spradley, by: Denise M. Martindill, for appellee Hot Springs Title Company.

      Woodsmith, Schnipper & Clay, by: Don Schnipper, for appellee Guy McDill.
   David Newbern, Justice.

Raymond L. Donathan, the appellant, sued the appellees, Guy McDill and Hot Springs Title Co., of which McDill was president, for tortious interference with a business expectancy. Summary judgment was granted to McDill and the company essentially on the ground that Donathan’s expectancy was subject to a contingency, and the fact that McDill’s actions brought about the contingency did not constitute tortious conduct on his part. The summary judgment is affirmed.

Donathan hired Hot Springs Title Co. to research the title to a parcel of land he wished to buy. Donathan was informed by the company that the land was soon to be sold for nonpayment of taxes. At the tax sale, Donathan and McDill both bid on the land, and Donathan’s bid of $2,800 was accepted. Delinquent taxes were approximately $300, and the land was worth $15,000 to $20,000.

After the sale, McDill informed the executor of the estate which owned the land about the sale and the estate’s right to redeem the land by payment of all taxes due within 30 days of the date of the sale. See Ark. Code Ann. § 26-37-202(e). (Supp. 1989). McDill was authorized by the executor to redeem the land on behalf of the estate. He did so using his own money channelled through an account of the Hot Springs Title Co. McDill then began negotiations with the estate to purchase the property.

Donathan, probably correctly, did not allege a fiduciary relationship. His action was based solely on the tort of interference with a business expectancy. We have recognized the tort. Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 671 S.W.2d 178 (1984); Walt Bennett Ford, Inc. v. Pulaski County Special School Dist., 274 Ark. 208, 624 S.W.2d 426 (1981). It consists of these elements: (1) a valid business expectancy (2) of which the defendants knew and (3) with which they intentionally interfered (4) causing a loss of the expectancy and (5) resulting damages.

Donathan’s business expectancy was to purchase the land in question for $2800 from the commissioner unless the owner made a timely redemption. His expectancy was fulfilled. No authority is cited holding, or even suggesting, that causing such a contingency as redemption to occur constitutes tortious interference.

While we understand and might agree with Donathan’s contention that some facts remain in dispute, we must agree with the trial court that none of them are material facts, given our conclusion that Donathan had no expectancy other than the one subject to the contingency which occurred.

Affirmed.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    GANNETT RIVER STATES PUBLISHING COMPANY v. ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION
    90-231
    801 S.W.2d 292
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Rose Law Firm, A Professional Association, by: Phillip Carroll, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

On May 14, 1990, this court adopted rules of confidentiality applicable to the Arkansas Judicial Discipline and Disability Commission. In the Matter of Rules 7 and 9 of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, 302 Ark. 633, 790 S.W.2d 143 (1990). The commission had been operating under our order of May 8,1989, In the Matter of Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, 298 Ark. 654, 770 S.W.2d 116 (1989), and Act 637 of 1989. The 1990 order permitted greater disclosure, and the appellant, Gannett River States Publishing Company, sought disclosure, in accordance with the new rules, of commission actions which occurred before the new rules came into effect and which would have been protected from disclosure under the old rules and statute. The commission declined to furnish the information sought, and Gannett filed its claim pursuant to the Freedom of Information Act. Ark. Code Ann. §§ 25-19-101 through 25-19-107 (1987 and Supp. 1989).

The circuit court held in favor of the commission, concluding its opinion as follows:

Although the Supreme Court has now redefined the point at which a constitutional right of access should be recognized, it is this Court’s opinion that the Supreme Court did not intend and certainly did not clearly express an intention that its revised rules would disturb Commission actions taken in reliance on the earlier rules, or the judges’ interest in continued confidentiality of such actions. The revised rules giving full access accomplish a substantive change in Commission proceedings, with respect to both participants and the public, and should be given prospective operation only.
The Court further determines that the confidentiality provisions of the Supreme Court’s opinion of May 8,1989, constituted a specific exception to the Arkansas Freedom of Information Act (FQIA), and that plaintiff [Gannett] therefore has no right of access to the records in issue under the FOIA.

We affirm the judgment.

The commission .was created by Ark. Const, amend. 66. Section (f) of the amendment gave this court the duty of making procedural rules implementing the amendment. By Act 637 of 1989, § 9, the general assembly provided: “The Arkansas Supreme Court shall adopt rules with regard to all matters of commission operations and all disciplinary and disability proceedings and promulgate rules of procedure.” Ark. Code Ann. § 16-10-405 (Supp. 1989). Section 2.(g)(2) of Act 637 provided, in part: “All proceedings held prior to a determination of probable cause and the filing of formal charges shall be confidential.” Our order of May 8, 1989, promulgating procedural rules for the commission contained the following as Rule 7.: “No disclosure by the Commission, to be made pursuant to section 2.(g) of Act 637 of 1989, shall be permitted except in accordance with procedures approved by the Supreme Court and upon reasonable notice to any judge concerned.” It is clear that prior to our revision of the rules by our order of May 14,1990, disclosure of “proceedings held prior to a determination of probable cause and filing of formal charges” were to be held confidential.

In our order of May 14,1990, we did away with the “private reprimand” remedy which was previously available to the commission as a sanction to impose upon judges. In the new Rule 7. we provided for confidentiality of commission investigations and deliberations with respect to the conduct of judges, but in addition to declaring that any formal charges and formal proceedings would be open to the public, as well as the record of such a proceeding, we provided that “ [a] ny action taken by the Commission after investigation of a judge shall be communicated to the judge by letter which shall become public information.”

The ultimate issue in this case is whether the information sought is excepted from that which must be released under the FOIA by virtue of Ark. Code Ann. § 25-19-105(b)(8) (Supp. 1989) because it consists of “[documents which are protected from disclosure by . . . rule of court.” Resolution of that issue depends on whether the new rule applies to information compiled before the rule went into effect. If not, then the information which would not have been subject to disclosure prior to the adoption of the change remains that way.

' 1. Our intent (subjective)

Gannett’s first argument is that the intent of our May 14, 1990, order was to make all actions taken by the commission open to public disclosure even though the proceedings had taken place prior to the change in the rules. We are invited simply to say whether we intended the new rule on confidentiality to be retrospective or not. While Gannett cites no authority which would permit us to follow that course, we probably could do so. That, however, has been suggested by the leading treatise on statutory construction as “not... the course of legal history.” Rules of court are not interpreted by having the court say what the law “is.” Courts construe them using the same means, including canons of construction, as are used to construe statutes. N. Singer, 3A Sutherland Statutory Construction, § 67.10 (4th ed. 1986).

2. Retroactivity

Gannett contends there may be no issue of retroactivity here because the documents they seek exist, and the question is whether they are entitled to them now rather than whether they were entitled to them before we changed the confidentiality provision. We do not agree with that contention. A judge who may have been investigated and cleared of wrongdoing or privately reprimanded prior to the change in the rule had a right under the former Rule 7. and Act 637 not to have the commission’s action disclosed. Only by applying the current Rule 7. can it be said that disclosure must be made.

The adjective “retroactive” has several definitions, one of which is simply that which acts upon a thing which is past. See Black’s Law Dictionary, p. 1184 (5th ed. 1979), definition of “retroactive law,” citing Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex. Civ. App. 1975).

Another definition of “retroactive law” is one which has the effect of disturbing a vested right. See Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962); State v. Kansas City & M. Ry. & B. Co., 117 Ark. 606, 174 S.W.248 (1915); William Bros. Lumber Co. v. Anderson, 210 Ga. 198, 78 S.E.2d 612 (1953); Pepin v. Beaulieu, 151 A.2d 230 (N.H. 1959); Silver King Coalition Mines Co. v. Industrial Comm’n., 2 Utah 2d 1, 268 P.2d 689 (1954).

To declare that the records held by the commission of its actions which were protected under the former rule are to be released under the new rule would have an effect on antecedent rights of those judges who may have been investigated and cleared or reprimanded under the assumption that the nondisclosure rule applied. That would be retroactive application under either definition.

3. Our intent (objective)

We have recognized “[t] he established rule . . .that all statutes are to be construed as having only a prospective operation, unless the purpose and intention of the Legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used.” State v. Kansas City & M. Ry. & B. Co., supra. The rule of prospectivity applies unless the intent that the law be retroactive “be the unequivocal and inflexible import of the terms and the manifest intention of the legislature.” United States v. Security Industrial Bank, 459 U.S. 70 (1982). As stated above, court rules are to be applied in the same manner.

Nothing in the new Rule 7. suggests in any way that its application will be retroactive. Applying the general rule of prospectivity which governs interpretation of statutes, we conclude that the application of the May 14,1990, version of Rule 7. is prospective, and thus the commission is not required to divulge its actions prior to that time which were protected under the former rule and statute.

Affirmed.

Glaze, J., concurs.

Hays, J., dissents.

Tom Glaze, Justice,

concurring. I concur. Our May 14, 1990 order, amending Rule 7, was a remedial, procedural change that did away with the Commission’s power to impose a private reprimand against a judge. In place of the private reprimand remedy, the rule provided that, when the Commission takes any official action with respect to a complaint about a judge, the matter shall become public information. .Neither of these two procedural rules vested a right to a particular remedy in any judge or, for that matter, in anyone else. However, judges were afforded different procedures or remedies, one private and the second public, depending on whether their cases were filed before or after May 14, 1990. In this connection, the new Rule 7 supplies what we determined to be a more appropriate remedy when the Commission investigates and acts with respect to existing rights or obligations concerning allegations of misconduct of a judge. Of course, that misconduct may have occurred prior to May 14, 1990, but, being procedural, the new rule applies only to those cases filed after it became effective. See Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962). However, cases that had been filed with the Commission prior to the May 14, 1990 procedural change are controlled by the old Rule 7 and its private reprimand remedy.

Here appellant seeks application of the new Rule 7 procedure to cases filed prior to the new Rule’s effective date. The court simply is unable to make such an application and therefore must deny the appellant’s request.


author: Otis H. Turner, Justice. David Newbern, Justice,

text:
    Isaac COLBERT, a/k/a Ike Colbert, a/k/a Ike Coleman v. STATE of Arkansas
    CR 90-179
    801 S.W.2d 643
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Honey & Honey, P.A., for appellant.

      Steve Clark, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

This is an appeal from a conviction for delivery of a controlled substance — rock cocaine — and a sentence of life imprisonment together with a fine of $25,000.

The appellant, an elderly black man, was charged by information with selling a small quantity of rock cocaine to undercover police officer Nick Sturghill through a third party go-between. A jury trial before an all-white jury resulted in the appellant’s conviction and sentence.

The appellant raises five issues in seeking a reversal of his conviction. First, the trial court erred in failing to grant a mistrial due to the state’s intimidation of a key defense witness. Second, the trial court erred in denying the appellant’s request for a presentence report, and the sentence which was imposed was excessive. Third, the appellant was prejudiced by the trial court’s erroneous admission of hearsay evidence. Fourth, the trial court erred in denying motions for discovery and for a directed verdict based upon lack of officer certification. Fifth, the appellant was denied the equal protection afforded by the Constitution of the United States by the state’s use of its peremptory challenges to strike all of the black persons from the jury panel before which he was tried.

We have carefully reviewed the record, and as to the appellant’s first four assertions of error there is no merit. Moreover, it is unlikely that the events giving rise to the appellant’s first four issues will again surface at retrial. However, we are persuaded that the appellant’s fifth point has merit, and we therefore reverse and remand for a new trial.

There is no challenge to the venire as a whole, but from the entire panel the names of at least four black members were drawn for prospective jury service in this case. Juror Livingston, a black male, candidly admitted that he knew the defendant and did not feel that he could be fair and impartial. Livingston was properly excused by the court for cause.

Juror Byrd, a black female, complained that her job requirements had caused her to work all night the previous night. She expressed serious doubts that she could stay awake or be attentive and expressed a strong desire to be excused. She was subsequently excused by the court.

Upon the court’s general voir dire of the panel, juror Evans, a black female, acknowledged that she knew the witness, Alma Henry, and that they had been schoolmates. It is significant to note at this point that juror Booker, a white female, also responded that she knew Alma Henry. When Evans’s name was drawn she was asked no questions by either the state or the defense but was excused peremptorily by the state. Juror Booker was also drawn, and the state neither questioned her nor challenged her as a juror.

The name of juror Blake, another black female, was drawn and this juror was asked no questions by either the state or the defense but was peremptorily excused by the state.

The accused made a timely objection to the composition of the jury panel, as selected, contending that the prosecution exercised peremptory challenges to exclude all black persons from the jury. He further asserted that this action by the state violated his equal protection rights guaranteed by the Constitution and thus denied to him a fair and impartial trial by a jury of his peers. The prosecutor denied the defense allegation that racial bias was a factor in the exclusion of the black jurors and gave the following “racially neutral” reasons for the exercise of his peremptory challenges: first, the prosecutor stated that he struck juror Evans because she was related to “the Alvin Evans, who . . . has been prosecuted in this court and is on probation, and has been a witness [in another case] that we have had problems with. . . ”;second, juror Blake was struck by the state because the prosecutor said that her children had been involved in previous municipal court actions and, “because of past experiences that I have had with her children, I chose to strike her.”

The record is silent with regard to any action by the trial court on the objection made by the appellant. We could infer from the fact that the trial proceeded without any action being taken that the court accepted as sufficient the prosecutor’s “racially neutral” explanation, and we could then discuss whether we agree or disagree with the trial court that the reasons given by the state were sufficient to satisfy the issue raised by the appellant. Under our previous holdings, however, even if the state’s explanations satisfied the trial court, the court was still required to make a sensitive inquiry to eliminate any possibility of racial bias. See Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988).

In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court clearly established that upon a showing of factual circumstances creating an inference that venire persons were excluded on account of their race, the burden then shifts to the state to come forward with a racially neutral explanation for each of the peremptory challenges. The trial court must then determine if the defendant “has established purposeful discrimination.” In making that determination, the Batson Court said: “In deciding if the defendant has carried his burden of persuasion, a court must undertake a ‘sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’ ”

Later in the same opinion, the Court said that when factors have been shown which raise the “necessary inference of purposeful discrimination [and] . . . when circumstances suggest the need, the trial court must undertake a ‘factual inquiry’ that ‘takes into account all possible explanatory factors’ in the particular case.” (Emphasis added.)

In establishing the necessity for making the determination that the challenges were not racially motivated, the Batson case is silent with regard to any recommended procedure. Indeed, the Court stated, “We decline, however, to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges.” But in so holding, the Court emphasized that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause.

Clearly, Batson placed the onus upon the trial court to first make a determination that the defendant has established purposeful discrimination. If the defendant makes such a showing, the court is then to determine the basis for the state’s challenges. If any doubt remains concerning the legitimacy of those challenges, the court must then conduct a sensitive inquiry into all of the circumstantial and direct evidence of intent as may be available.

In our first application of the requirements laid down by the United States Supreme Court, we interpreted Batson as requiring the trial court to undertake, in every instance, a “sensitive inquiry” into the direct and circumstantial evidence available to decide if the state has made an adequate explanation. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987).

In Mitchell v. State, we not only followed our decision in Ward v. State but also expanded its application. In Mitchell, the prosecutor extensively questioned Roger Petty, the sole black venireman, and later exercised a peremptory challenge to exclude him from the jury. Immediately upon striking Petty, the prosecutor stated, for the record, that Petty had been excused because Petty’s answers did not seem to the prosecutor to be truthful and candid. The trial court accepted the state’s explanation without any inquiry. This court reversed Mitchell’s conviction for error in the jury selection process, stating:

[Wjhere the use of a peremptory challenge results in the exclusion from the jury of all members of the defendant’s minority race, it is not necessary to show exclusion of more than one minority juror of the same race as the defendant to make a prima facie case of discriminatory use of a peremptory challenge, and thus to invoke the ‘sensitive inquiry’ requirement.

295 Ark. at 350-1, 750 S.W.2d at 941.

In effect, we there held that the state’s reasons for the exercise of its peremptory challenges — whatever those stated reasons might be and irrespective of any apparent legitimacy — would be insufficient to overcome an inference of racial bias in the selection process, even if such an inference arose solely as a result of circumstances alone. We now believe that our previous interpretations of the Batson holding were misdirected only to the extent that we have said that Batson requires a “sensitive inquiry” by the trial court in every instance, notwithstanding the validity of the state’s explanation for its peremptory challenges.

We now hold that upon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. If the state’s explanation appears insufficient, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the state.

The standard of review for reversal of the trial court’s evaluation of the sufficiency of the explanation must test whether the court’s findings are clearly against a preponderance of the evidence. In every instance, however, the court shall state, in response to the defendant’s objections, its ruling as to the sufficiency or insufficiency of the racially neutral explanation provided by the state.

In this case, the peremptory striking of two black jurors without even a question by the prosecutor, leaving an all-white jury to try this black defendant, raises an inference, if not a presumption, that the race of the jurors involved was a factor in the decision to strike. An inference of racial bias, having thus been established, the explanations given by the state for exclusion seem thin at best; moreover, they appear totally insufficient without further inquiry by the court for the purpose of eliminating any probability of racial motivation in the state’s actions. Without the establishment by a preponderance of the evidence before the trial court that the challenges were for Valid reasons without any racial bias, the defendant’s constitutional rights have not been protected and the trial court’s error requires a reversal and retrial.

Reversed and remanded.

Dudley, Newbern, and Glaze, JJ., concur.

David Newbern, Justice,

concurring. The court’s opinion correctly concludes that Isaac Colbert raised an “inference, if not a presumption, that the race of the jurors . . . [peremptorily struck] was a factor in the decision to strike.” The court’s opinion also correctly concludes that the Supreme Court’s opinion in Batson v. Kentucky, 476 U.S. 79 (1986), required the prosecution to offer racially neutral explanations why the black jurors were struck. The opinion observes that explanations, which were “racially neutral,” were given by the prosecutor. It is then observed that the explanations were “thin,” and the court’s decision, which I believe to be correct, is to reverse and remand the case.

While I agree with all of the above, I cannot agree it is proper for the opinion to go out of its way to strike with crippling blows our opinions in Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), and Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988) . This case is a good example of the kind in which the requirement for a sensitive inquiry by the trial court is proper, and it is a good example to show why it is required.

My reading of the Supreme Court’s opinion in the Batson case differs materially from that of the majority. The majority opinion quotation that “the defendant ‘has established purposeful discrimination’ ” is taken from part “B” of the Batson case opinion in which the Supreme Court reviews a number of its cases on the general issue of racial discrimination in the judicial context. 476 U.S. at 93. Also a part of that review is the reference to a “sensitive inquiry” which first appeared in Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977). The majority opinion reference to the language, “When circumstances suggest the need. . . .” also comes from that review of other cases. 476 U.S. at 95. The majority opinion seems to suggest that these statements take something away from our decision in the Ward and Mitchell cases. Not so. They were used by the Supreme Court only as preliminaries to the resolution of the issue presented in the Batson case.

While the defendant may have an overall burden of proof on the issue of discrimination in the selection of jurors, I believe it is clear, and the majority opinion here recognizes, that once the prima facie display has been called to the court’s attention, the burden of going forward with the evidence clearly shifts to the prosecution. When a pattern or other evidence of discrimination, either in the case at hand, or historically, appears, the defendant has demonstrated the need for a factual inquiry. In deciding both the Ward case and the Mitchell case, we thought the sensitive inquiry was a requirement regardless of racially neutral explanations the prosecution may have had for peremptorily striking black jurors. We were correct. The majority opinion recognizes that the trial court in this case had a duty to do more than accept without comment, inquiry, or finding of fact the prosecutor’s explanation. To say that such an explanation, or any other explanation, may be regarded as sufficient without any judicial inquiry makes a mockery of the essence of the Batson decision.

Had the trial court inquired behind the prosecution’s racially neutral explanations, we w.ould probably not have this issue before us. While I agree with the majority opinion that the explanations appear to be “thin,” given other facts in the record, I am not certain that they might not have been wholly racially neutral. The problem is that the trial court, despite his much better position than ours for doing so, did not attempt to find out. Surely any prosecutor can offer neutral reasons, such as one offered in the Mitchell case, i.e., that he did not believe the prospective juror was telling the truth.

Dudley and Glaze, JJ., join in this concurrence.


author: Otis H. Turner, Justice.

text:
    Barbara Evelyn MOORE v. STATE of Arkansas
    CR 90-135
    801 S.W.2d 638
    Supreme Court of Arkansas
    Opinion delivered December 21, 1990

      Karen R. Baker, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

The appellant, Barbara Moore, appeals from a conviction of multiple felonies resulting in a collective sentence to a term of 42 years. She was convicted of possession of methamphetamine, criminal possession of explosives, felony possession of firearms, and criminal use of prohibited weapons.

The charges against the appellant were joined with similar charges against her husband, Allen Rene Moore. Following the joint trial, Mr. Moore was also convicted, and his sentence was affirmed by this court on November 5,1990. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990).

The appellant argues eleven points of error in seeking a reversal, none of which merit reversal of the convictions.

On February 12, 1989, the Clinton Police Department received a report that a man and woman in a U-Haul truck had given two different names while inquiring about rental property. Later on the same date, Officer Dewey, while patrolling U.S. Highway 65, noticed the U-Haul truck occupied by the Moores. Dewey had received information earlier in the day about a couple in a U-Haul truck, but he testified that his attention was drawn to the truck in this instance because the vehicle was crossing the highway center line in an unusual and dangerous manner.

Officer Dewey stopped the truck, and when neither the appellant nor her husband could produce a vehicle operator’s license, they were taken to the local Sheriffs Department. There they were turned over to the sheriff and Officer Barnett. Upon Officer Barnett’s request, Mr. Moore gave permission for a search of the truck for identification. When the officers found a gas mask, they terminated the search and notified State Police investigators. About 10:15 p.m. Investigator Rodney Combs of the Arkansas State Police arrived and was advised that Mr. Moore had consented to a search of the vehicle. Officers raised the back door of the truck and discovered containers of chemicals. There was a heavy odor of phenylactic acid, one of the chemicals used in making amphetamine and methamphetamine.

The appellant and her husband were then arrested and read their Miranda rights. Mr. Moore signed a consent form for searches of the truck and the parties’ motel room. A further search of the U-Haul vehicle produced firearms, explosives, chemicals, and laboratory equipment. Based on information received from Allen Moore, the police located a drug laboratory in Stone County on the following day.

I.

The appellant first argues that Officer Dewey was unqualified and that all of the evidence obtained as a result of her arrest should have been suppressed.

The same argument was asserted in Moore v. State, and we there held that although the initial arrest was by an uncertified officer, that arrest was for a traffic violation. All of the subsequent actions were taken by qualified officers, and all searches were made pursuant to consent granted.

The statute in force at the time provided that any action taken by an unqualified officer shall be invalid. In construing the statute, we have held that the “charge” made by an unqualified officer would be invalid. Grabel v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). The charges asserted against the appellant were by prosecutor’s information, not an officer’s citation. We therefore are not concerned with the validity of the charging instrument and decline to apply the exclusionary rule. For a full discussion of this point, see Moore v. State, 303 Ark. at 517.

II.

The appellant next argues that the evidence obtained flowed from a pretextual arrest and should have been suppressed. This issue was not properly raised below or preserved for appeal, and we decline to consider arguments not properly raised before the trial court. Moore v. State, 303 Ark. at 518.

III. & IV.

The appellant asserts in her third point for reversal that the trial court erred in failing to suppress as involuntary the statements made by her husband. She claims, in her fourth point, that the evidence obtained through those statements should have been suppressed.

Both of these issues are without merit. The appellant is without standing to object to alleged violations of the rights of a co-defendant. We have often said that the right against self-incrimination is a personal right not available to a co-defendant. See Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). Also, an accused can only invoke the exclusionary rule to suppress evidence where his or her own constitutional rights have been violated. Goodwin v. State, 295 Ark. 385, 749 S.W.2d 657 (1988).

The appellant insists that this case is distinguishable from Scherrer in that these co-defendants were tried together rather than in separate trials. No cases are cited by the appellant in support of her argument, and such a distinction does not appear to be supported by the language of the Arkansas cases. See Mock v. State, 19 Ark. App. 280, 725 S.W.2d 1 (1986), where three defendants were jointly tried, and each was found to have no standing to assert the Fourth Amendment rights of the others.

V.

The appellant next contends that the trial court erred in not suppressing statements of the co-defendant that may have implicated her with respect to the charge of criminal possession of explosives.

The appellant filed a timely motion seeking to suppress all of her co-defendant’s statements which implicated her in the various crimes charged. The trial court granted the motion only insofar as the co-defendant’s statements detailed a principal role by the appellant.

The appellant, under the court’s ruling, would have been entitled to have any reference to her criminal activity deleted from the co-defendant’s statements. See Moore v. State, 279 Ark. 296, 761 S.W.2d 894 (1988); see also Richardson v. Marsh, 481 U.S. 200 (1987). However, in this instance there is no showing that the appellant ever pursued this matter any further after submitting the general motion to suppress. Nor is there a showing that she objected when the statement was admitted into evidence or requested that specific or implied references to her be expunged before introduction of the statement by the state. It cannot be said that the entire statement of Allen Moore was inadmissible; therefore, the appellant had the burden of pointing out any alleged inadmissible portions at or prior to the admission of the statement. See Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). Having failed to meet this burden, the appellant is unable to present a meritorious argument on this point.

VI.

For her sixth point of error, the appellant argues that the trial court should have suppressed the evidence seized from the U-Haul vehicle and motel room because that evidence was obtained in violation of her constitutional rights.

The appellant made a timely motion to suppress the evidence seized from the vehicle and trailer and that motion was denied. No specific request for suppression of the evidence secured from the motel room was ever made by the appellant, and any objection in that regard is therefore not preserved for appeal. Only specific objections made at trial are preserved for appeal. Parrette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990). Further, the appellant has no standing to contest a search of the U-Haul vehicle since there was no showing that she had a proprietary interest or legitimate expectancy of privacy in it. See Fernandez v. State, 303 Ark. 230, 795 S.W.2d 52 (1990).

On the merits, it is clear that the searches of both the vehicle and motel room were conducted with the consent of Allen Moore and do not violate the Fourth Amendment rights of this appellant. Arkansas Rule of Criminal Procedure Rule 11.1; Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987).

VII.

The appellant contends that the court erred in denying her motion to suppress a plastic vial seized in a search of her person conducted at the police office. The record, viewed in the light most favorable to the appellee, shows that the appellant was arrested at the sheriffs office and that a search of her person was conducted by a matron after the arrest.

A search incidental to a lawful arrest is a valid search. See Arkansas Rules of Criminal Procedure Rule 12.1. In any event, a search of the person, when performed substantially contemporeanously with the arrest, is permissible. See Horton v. State, 262 Ark. 211, 555 S.W.2d 226 (1977). The appellant’s argument on this point is without merit.

VIII.

The eighth assignment of error is an assertion that the trial court should have granted the appellant’s motion for a mistrial. The counsel for co-defendant Allen Moore, asked Officer Combs, during cross-examination, what evidence he had to show that Allen Moore was manufacturing methamphetamine. After listing the evidence, the officer, when pressed, said there were “other considerations.” Counsel then responded, “Well, I’m sure if they [the other considerations] were for him [Allen Moore] you would be telling us about — against him you’d be testifying to them?” The state objected, asserting that the door had been opened for the state now to inquire concerning the defendant Allen Moore’s prior criminal record, and the court disagreed. However, the state requested that the jury be admonished and the appellant made no objection to the giving of an admonition. The court then made the following statement to the jury:

THE COURT: Ladies and gentlemen of the jury, there has been some interchange here between attorney and witness regarding other considerations and Mr. Foster, the Prosecuting Attorney, has objected to Mr. Lewis’s referral to these matters and this witness said that there are other considerations, but there are certain legal rules of evidence that keeps him, at this point in time, from telling you about those other considerations. It’s not because it’s injurious to the State of Arkansas. It’s just a rule of evidence that doesn’t allow him to go any further than he has gone. Now, if Mr. Lewis and Ms. Baker continue to pursue this matter, then this Court may very well rule that they have opened the door and I’ll let this man tell other things that he has no right to tell at this point in time. So I hope you understand that. . . . (TR. 394, 395.)

It is not clear from the record that the appellant ever stated specifically her objection, except that the admonition was a “comment on the evidence.” Clearly, the trial court properly instructed that the jury was not to concern itself with the court’s rulings on evidentiary matters. Any objectionable comment should have at that time been clearly and timely brought to the attention of the trial court. See Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1986). There is no constitutional prohibition against the trial court commenting on the law as opposed to the facts. McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986).

The instruction by the court was proper and a correct statement of existing law. The line of questioning by the co-defendant’s counsel was at the threshold of an “opening of the door” to allow the state to introduce evidence not otherwise admissible. See Clark v. State, 292 Ark. 69, 727 S.W.2d 853 (1987). It is the role of the trial court to maintain the impartiality of a trial, and, unless he clearly exceeds proper bounds in carrying out that role, the appellate court will not reverse. See Kitchen v. State, 271 Ark. 1, 607 S.W.2d 305 (1980).

The granting of a mistrial is an extreme remedy which will be resorted to only where there has been an error so prejudicial that justice cannot be served by continuing the trial. King v. State, 298 Ark. 476, 769 S.W.2d 407 (1989). No such prejudice is shown here.

IX.

For her ninth point of error, the appellant contends that Ark. Code Ann. § 5-73-104 (1987), the statute defining the offense of criminal use of a prohibited weapon, is unconstitutionally vague. The thrust of the appellant’s argument is that the statute refers to a “sawed-off shotgun” without defining the weapon so qualifying.

A statute will not be declared unconstitutional unless it clearly and unmistakenly conflicts with the Constitution. Board of Trustees v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988). A statute meets a due process challenge of vagueness if the statute is clear enough to provide a standard of conduct for those whose activities are proscribed, as well as a standard for police enforcement and for ascertainment of guilt. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).

Without question, the barrel of the shotgun found in the vehicle occupied by the appellant had been “cut-off,” and the extent to which it had been shortened is not relevant to this prosecution. This court considers words in a statute by giving them their usual and ordinary meaning. Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990). A shotgun with a barrel shortened by cutting off a portion thereof constitutes a “sawed-off shotgun.” The appellant’s challenge to the statute is meritless.

X.

The appellant next contends that the trial court should have granted her motion for directed verdict on the charge of possession of a controlled substance.

The record reflects that at the close of the state’s case, the appellant moved for a “directed verdict on each of the other charges... on the basis that the state has not substantiated their case.” On appeal, the appellant now contends with specificity that: first, the state failed to prove the appellant actively or constructively possessed methamphetamine since some of the substance was found in a motel room, and no additional factors were shown to connect the appellant to the substance; and second, the state failed to show the substance was in a “usable amount.” See Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990).

Under a general motion for a directed verdict, these specific objections now being made were presumably not considered by the trial judge as there is no such indication in the record. The specific objections were not properly submitted with a fair opportunity for consideration by the trial court, and we will not now consider them upon appeal. Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983). See also Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990).

Even if we should reach the merits of the appellant’s contention, a vial containing 100 milligrams of methamphetamine was seized from the appellant’s person during a search at the jail. That fact, standing alone, is sufficient to overcome a general motion for directed verdict as made by the appellant.

XI.

Finally, the appellant argues that a verdict should have been directed for her on the charges of felon in possession of a firearm, criminal use of a prohibited weapon, and criminal possession of explosives.

These counts were the “other charges” referred to by the appellant in making her general motion for directed verdict at the close of the state’s case. This is the same argument as that advanced in the appellant’s Point X, and the same holding applies here: the argument is not preserved for appellate review. In any event, the evidence submitted on each charge is abundantly sufficient to sustain a jury’s finding of guilt.

It is uncontroverted that the appellant was a felon; that the appellant was a joint occupant of the premises where the contraband was discovered; and the appellant was an occupant of the vehicle containing the contraband. She was the wife of the co-defendant who was operating the vehicle. The U-Haul vehicle had been rented in Texas, and the appellant had been traveling with her husband. Officers found weapons in the vehicle in plain and unobstructed view. They also discovered drugs and drug paraphernalia in the motel room where the appellant had been staying. The U-Haul vehicle contained the explosives, the sawed-off shotgun, and the chemicals utilized in making methamphetamine. Finally, a vial containing methamphetamine was discovered on the appellant’s person when she was searched.

Taken collectively, all of the evidence was sufficient to create an inference of knowledge and joint possession and thus to sustain the jury’s verdict. See Hartman v. State, 258 Ark. 1018, 530 S.W.2d 366 (1975).

Affirmed.