text:
    Ides William HARRIS, Individually and as Administrator of the Estate of Carrie HARRIS v. Gail W. DAMRON
    CA 79-186
    594 S.W. 2d 256
    Opinion delivered January 30, 1980
    Released for publication February 20, 1980

      Owens & Fikes, for appellant.

      Bridges, Young, Matthews, Holmes & Drake, for appellee.
   James H. Pilkinton, Judge.

The decedent, Carrie Harris, was struck and killed by an automobile being driven by Mrs. Gail Damron. The accident happened at approximately 8:45 a.m. on March 23, 1977, as Mrs. Harris was attempting to cross U.S. Highway 270 in front of her house.

The allegations of negligence were that Mrs. Damron was speeding in that she was traveling in excess of 55 miles per hour in a 45 mile per hour speed zone; and, that she failed to exercise reasonable care under the circumstances. Recovery was sought for funeral expenses of the decedent, and for mental anguish on behalf of the surviving adult children of the deceased.

The defendant filed an answer admitting that Carrie Harris was struck by an automobile driven by her on the highway in question, but Mrs. Damron denied all other material allegations of the complaint. In addition, Mrs. Damron claimed that the death of Carrie Harris was solely and proximately caused by the negligence of Carrie Harris.

The issues were tried before a jury. A verdict was returned for the plaintiff and the jury awarded damages of $850.00 to the estate of Carrie Harris, but no damages were awarded to her adult children for mental anguish. The plaintiff below appealed to the Arkansas Supreme Court and the case has been assigned to the Arkansas Court of Appeals under Rule 29(3).

I.

Appellant first contends that the trial court erred in refusing to admit plaintiffs offered exhibits No. 7, 8, 9, 10 and 11.

The evidence shows that Mrs. Harris was 80 years old, but in good health for a person that age. She lived on the south side of Highway 270. At the time of the occurrence, Mrs. Harris was leaving her house and going across the highway to a relative’s house. The Harris home was the first house east of the Highway 270 and Highway 104 junction and is surrounded by trees. The state trooper who investigated the accident testified that if a person was not looking for a house, or did not glance in that direction, you might miss the Harris house and not know it was there.

No one knows whether Mrs. Harris was attempting to walk or run across the highway. The accident occurred before the Highway 65 four lane was opened in Jefferson County, and there was a lot of extra Highway 65 traffic on Highway 270 at the time. The area of impact was established by debris which was approximately 500 feet east of the Highway 104 junction. Mrs. Damron testified she was going between 55 and 60 miles per hour when she went through the 104 junction. She did not see Mrs: Harris, and the Damron car struck Mrs. Harris killing her instantly.

The body of Carrie Harris was found in the northbound shoulder of Highway 270 approximately 94 feet and 4 inches from the area of impact. A severed limb from her body was found 166 feet and 1 inch from the area of impact.

The court admitted plaintiffs Exhibits 1 through 6, inclusive. Plaintiffs Exhibit 1 was a diagram of the accident scene. Plaintiffs Exhibit 2 depicts the front view of Mrs. Damron’s vehicle, after the impact, as parked on the eastbound shoulder of the highway. Plaintiff’s Exhibit 3 is a photograph showing the eastbound view of the highway indicating where the body of Mrs. Harris came to rest. This photograph also shows some debris. Plaintiff’s Exhibit 4 shows a close up front view of the Damron vehicle and indicates the damage done to the vehicle because of the impact. Plaintiffs Exhibit 5 is a westbound view showing the position of Mrs. Harris’ body on the north shoulder of the highway. Exhibit No. 5 also shows the terrain along Highway 270 in the area of the accident. Plaintiffs Exhibit 6 is a statement of the funeral bill totaling $1699.45.

In addition, appellant had offered Plaintiffs Exhibits 7, 8,9,10 and 11. The trial court refused to permit the introduction of these photographs on the basis that the prejudicial effects of them would outweigh any evidentiary value that these photographs might have. Appellant has not reproduced and made a part of his abstract the photographs which were offered as Exhibits 7 through 11, which the court refused to admit. This court would be justified in refusing to consider appellant’s argument under Point I because of the failure to comply with Rule 9(d) of the Supreme Court and Court of Appeals of the State of Arkansas. Obviously the court is handicapped in passing on the admissibility of photographs it can see only by searching them out in the transcript. Be that as it may, from the transcript it appears that the trial court was correct in excluding the photographs in question. None of the offered photographs which the court refused to admit tended to prove anything in dispute. Appellant’s Exhibit 7 shows the severed limb of the decedent covered by some articles of clothing. Exhibits 8,9,10, and 11 are somewhat gruesome pictures taken by the Coroner, showing a severed limb and decedent’s body in the morgue. The investigating officer testified fully and at length about the accident scene. Appellee admitted that her car struck and killed Mrs. Harris. The evidence established without dispute that one of the decedent’s limbs was severed in the accident. In view of the other evidence introduced, including the exhibits which were admitted, the court was correct in excluding these photographs on the basis that the prejudicial effects of them would outweigh any evidentiary value that the excluded photographs might have. Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1979).

The admissibility of such photographs addresses itself to the sound discretion of the trial court. We do not disturb the ruling of the trial court unless there is an abuse of discretion. Wheeler, Adm’x v. Delco Ben, 237 Ark. 55, 371 S.W. 2d 130 (1963); McGeorge Contracting Company v. Mizell, 216 Ark. 509, 226 S.W. 2d 566 (1950).

II.

Appellant next árgues that, the judgment on the jury verdict is contrary to the law and evidence of the case. Appellant says there is no substantial evidence to support the verdict. We find no merit in this argument. The case was fully tried and the issues were submitted to the jury under instructions that are not questioned. The jury found for appellant and, by general verdict, placed a greater part of the negligence on Mrs. Damron. The verdict for the estate in the amount of $850.00 damages, instead of the full amount of the funeral bill, indicates that the jury also found Mrs. Harris guilty of some negligence. No argument is made that the jury was in any way improperly- instructed on the measure of damages, or on any other issue. Certainly there is substantial evidence to sustain this jury verdict, and no grounds exist to disturb it on appeal. McWilliams v. R & T Transport, Inc., 245 Ark. 882, 435 S.W. 2d 98 (1968). See also Love v. H. F. Construction, 261 Ark. 831, 552 S.W. 2d 15 (1977).

III.

Appellant argues finally that the failure by the jury to award damages for mental anguish to the adult children was contrary to the evidence and the law in this case. The jury was properly instructed on the issue of mental anguish as specified in AMI 2215. Based on this record, the jury was entitled to find that none of the adults had suffered more than the usual and normal grief attendant upon the loss of a loved one. Eisele, Adm’r v. Beaudoin, 240 Ark. 227 at 231, 398 S.W. 2d 676 (1966). See St. Louis S.W. Ry. Co. v. Pennington, 261 Ark. 650 at pp. 670-683, 553 S.W. 2d 436 (1977), for a complete discussion of the issue of mental anguish in Arkansas.

Affirmed.


source: Caselaw Access Project

author: James H. Pilkinton, Judge. George Howard, Jr., Judge,

license: Public Domain

text:
    Dennis Earl CAGLE v. STATE of Arkansas
    CA CR 79-109
    594 S.W. 2d 573
    Opinion delivered January 30, 1980
    Petition for Review denied March 3, 1980
    Petition for Rehearing denied March 5, 1980
    Released for publication March 5, 1980

      Michael E. Surguine, for appellant.
    . Steve Clark, Atty. Gen., by: Robert J: DeGostin, Asst. Atty. Gen., for appellee.
   James H. Pilkinton, Judge.

Appellant Dennis Earl Cagle and another person were charged by information with the offense of Criminal Attempt to Commit Burglary and Theft, on or about the 12th day of December, 1978, by cutting the screen and partially opening a window of a house belonging to Harry McAdams, Jr., in Newport, Arkansas. Appellant requested, and the court granted, a separate trial.

Cagle also filed a motion to suppress any statements taken from him while in custody. Pursuant to Jackson v. Denno, 378 U.S. 368 (1964), an in-chambers hearing was held on that motion before appellant’s trial began. The court denied appellant’s motion to suppress.

A trial by jury was held. In addition to other testimony, the State introduced into evidence a confession made by the defendant three days after his arrest. The jury returned a verdict finding Cagle guilty as charged. He was sentenced to six years imprisonment. He appeals contending that the trial court erred in admitting his confession into evidence.

On the afternoon of December 12, 1978, Roger Brand returned to his home, looked across the street at the McAdams house and noticed two people trying the windows and door of the house. Brand then saw the two running through the McAdams back yard, and then through a graveyard beyond. Moments later, Brand and McAdams confronted Cagle and Ronnie Gates in the graveyard. Police officers arrived and arrested the two suspects. The officers then returned to the McAdams house where they discovered the screens on one of the windows had been cut, the window was partially opened, and there were some puncture holes on the insulation surrounding the window. Appellant Cagle had a large “Buck” knife in his possession at the time of his1 arrest.

At the Denno hearing, the State had the burden of showing that appellant’s confession was made after a voluntary, knowing and intelligent waiver of the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The proof offered by the State at the hearing revealed that appellant was arrested on December 12, 1978. Immediately upon his arrest, Officer Jerry Long read to appellant his constitutional rights from a so-called Miranda Warning Card, which the officers kept for that purpose. When the officer and appellant arrived at the station house at approximately 5:20 p.m. on the same day, Officer Long advised appellant of his constitutional rights a second time. Appellant declined to make any statement at that.particular time. Appellant was placed in jail, and three days later Officer William Cardwell removed appellant from his cell and took him to the officer’s office. Cardwell advised appellant of his rights, and then asked if he wished to make a statement. Appellant said that he did, and the statement was taped. After the tape was replayed for appellant, a transcript of the statement was typed. Officers Long and Cardwell were present when the statement was made. Chief Wilson was in an adjoining office.

The issue on appeal is whether the trial court properly found, based on the totality of the circumstances, that appellant’s confession was voluntary and hence admissible into evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).

In the case before us appellant’s confession was given without counsel. Therefore, the proper test is whether appellant was effectively warned of his rights and knowingly and willingly decided to waive them. United States v. Harden, 480 F. 2d 649 (8th Cir. 1973). The trial court found that appellant did so waive his rights. He was under no disability. Appellant testified at trial that his rights were explained to him before the confession was given, and the transcript of the confession bears this out. There was no contention at trial, nor is it argued on appeal, that appellant was not advised of his rights or that he failed to understand these rights álthough appellant did not sign a written waiver form. However desirable it is to obtain a written waiver of rights, failure to do so does not invalidate a voluntary confession where there is no contention that the rights were not explained or understood.

Relying on his own testimony at trial, appellant contends that the Newport Police officials used psychological coercion to wring the confession from him. Whether such psychological coercion exists is determined by weighing all the circumstances surrounding the confession to resolve whether the circumstances of pressure overbears the power of resistance of the accused. Matthews v. State, 261 Ark. 532, 549 S.W. 2d 492 (1977).

The evidence presented revealed that appellant was 18 years old and had completed the eighth grade with passing marks. A review of appellant’s testimony at the Denno hearing and at the trial gives no indication that appellant suffered from any mental disability, and none is claimed. The testimony shows that appellant is of average intelligence and has a good command of the English language. The record also reveals that appellant was no stranger to the criminal justice system, having been convicted of a prior felony offense. It is clear to us that appellant had the mental capacity and experience to understand, appreciate and intelligently waive his constitutional rights. But appellant contends his will was overborne by alleged attacks on his accomplice and threats to file a possession of marijuana charge against him, and by an alleged threat that the officers would see that he received a twenty year sentence on the present charge. Officers Caldwell and Wilson specifically denied that any such threats were made or that coercion was present. Mr. Ralph Black, who was appellant’s probation officer, testified that no such threats occurred while he was present. The confession itself reveals that no threats or promises were made.

The testimony of appellant that the officers used coercion is not entitled to more weight than the testimony of the officers that they did not. Smith v. State, 256 Ark. 67, 505 S.W. 2d 504 (1974). See also Decker v. State, 255 Ark. 138, 499 S.W. 2d 612 (1973). In such cases the trial court determines the credibility of the witnesses. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978).

Custody alone is not sufficient to render invalid an otherwise voluntary confession. The record shows that on the third day of his incarceration, appellant was advised of his Miranda rights a third time, and was confronted with a .45 caliber pistol which had been stolen. At that time appellant voluntarily made the confession which was subsequently admitted into evidence at his trial. The trial court found that he was not acting under fear or coercion.

We have considered the nature of the questioning, the length of interrogation, the manner in which the warnings were given, and all testimony, factors, and circumstances which would have any bearing on appellant’s allegation of deception, coercion or inducement. In other words, we have carefully reviewed the total circumstances surrounding the confession of appellant and have concluded that the trial court’s finding of voluntariness is not against the preponderance of the evidence. Degler v. State, supra.

Appellant also contends that all material witnesses to the confession were not present at. the Denno hearing. The evidence presented at this hearing reveals there were four material witnesses to appellant’s confession. These were Jerry Long, William Cardwell, Gary Wilson and Ralph Black. Except for the appellant, no other persons were present during the taking of the confession or immediately prior thereto. However, appellant says that another person was a material witness. He testified that two days before making his confession, an unidentified jailer “jumped on” Ronnie Gates, his accomplice. Appellant further testified that Officer Gary Wilson threatened appellant after the unidentified jailer’s attack on Gates. As already noted, Wilson was presented and testified at th& Denno hearing and denied that any threats were made.

In Bushong v. State, 267 Ark. 113, 589 S.W. 2d 559 (1979), the Arkansas Supreme Court said:

[Tjhere must be some connection between the witness and the alleged acts of coercion or an opportunity to observe the alleged coercion.

There is insufficient evidence in this record to connect the alleged acts of the unidentified jailer to the confession which occurred two days later. We are persuaded that all material witnesses to appellant’s confession were present at the Denno hearing as required by law. Bushong v. State, supra.

Finding no error, the judgment of the circuit court is affirmed.

Howard, Newbern and Hays, JJ., dissent.

George Howard, Jr., Judge,

dissenting. I am unable to join the majority in affirming appellant’s conviction because I am persuaded that the trial court erred in finding appellant’s purported confession free and voluntary. The State’s evidence falls short of establishing the voluntariness of the statement by a preponderance of the evidence.

During the Denno hearing, appellant was requested to relate those things that happened, while he was in jail, that “made you feel like you had to make a statement, that you had to confess?”

In reply, appellant said:

A. A couple of days before I made them statements, Ronnie Wayne Gates got jumped on by the jailer, and Wilson said if I am going to have to let one of the guilty ones go to get you, Cagle, I will. He said myself, I think you was hired to come to my town and ransack it.
Q. Was there anything that máde you feel like that you had to confess, that you were in such a fix that you had better make a statement?
A. Yes, Sir. I found a bag of dope over there in the cell. Before I turned it in they found it, and they used that on me. They said if you confess, I will drop this dope charge, and they said if you don’t I’ll see that they give you twenty years.

On cross-examination, appellant testified:

Q. You said Ronnie Gates got jumped on?
A. Right.
Q. But nobody jumped on you?
A. No. He had threatened me.
Q. Well, Ronnie Gates had threatened you?
A. No, the jailer had. He said you will be next if you don’t settle down, and I wasn’t doing nothing but laying on my bunk.
Q. Okay, but that didn’t have anything to do with you giving a statement or confession, did it?
BY MR. SURGUINE:
Objection, Your Honor, I think it does, I think it is very relevant.
BY THE COURT:
Overruled. You may answer.
Q. That didn’t have anything to do with you giving — they were just saying settle down, they weren’t saying we are jumping on you to make you confess?
A. I didn’t know that.
Q. Well, he never did say anything about a confession, did he?
A. Well, I am saying I didn’t know that. I didn’t know, what he was jumping on me for.
Q. Well, he said to settle down, didn’t he; isn’t that your own words?
A. Yes, but 1 wasn’t doing nothing.
Q. Okay, he said to settle down, you weren’t doing nothing, he didn’t ask you to make a statement, did he?
A. When did he ask me that, when I was laying on my bunk. .. .

Appellant acknowledged, on cross-examination, that he had not informed the jailer about discovering the marijuana in his cell and explained:

A. No, I was thinking about turning it in because they were pretty tee’d off at me for not confessing.”

Ralph Black, parole officer and a rebuttal witness called by the State, testified about an incident that took place when he interviewed appellant, prior to the purported confession. Mr. Black had taken appellant from the jail cell and, during the interview, the Chief of Police confronted appellant with the marijuana allegedly found in appellant’s cell. Mr. Black was asked by the State:

Q. Do you recall Chief Wilson coming in on that date during the interview with a can of marijuana or sack of marijuana?
A. I remember the Chief coming in and mentioning that he had some marijuana that had been found in Cagle’s possession.
Q. And then what occurred?
A. I asked Cagle if this marijuana was his and he said that he had had it in his possession, he found the marijuana, and the Chief said they were going to run fingerprints on it and it would determine, and I asked Cagle about it and Cagle said he had had it in his possession. I thought perhaps the material had been smuggled into the jail as contraband and I asked him where he had got it and he said he had found it there in the jail, and I asked him what he intended to do with it and he said well, he was going to use it for his later purposes at a later time. (Emphasis added)

Appellant also testified:

Q. Dennis, when you were taken into custody and taken down to the police station, was there any point that first day when you asked them to give you a lawyer, that you wanted a lawyer?
A. After they had locked me up.
Q. That was the first day?
A. Right.

The undisputed, evidence shows that appellant, a white youth, 18 years of age, (1) has completed eight years of schooling, (2) had been in jail for three days before he agreed to confess while rejecting all previous requests for a statement, (3) was not afforded an attorney although a request for ;an attorney was made on his first day of incarceration — this testimony was not refuted by the. State when the State presented rebuttal testimony, (4) a can or sack or marijuana mysteriously appeared in appellant’s jail cell and, according to appellant’s testimony, was told, by a police officer, that if he confessed “I will drop this dope charge, and ... if you don’t I’ll see that they give you twenty years.”, (5) during the interrogation of appellant on December 15, 1978, which resulted in the purported confession, appellant was seated at a desk where a .45 caliber gun had been placed, (6) appellant was told by the Chief of Police ‘‘if I am going to have to let one of the guilty ones go to get you, Cagle, I will.... I think you were hired to come to my town and ransack it.”, and (7) appellant’s co-defendant, Ronnie Wayne Gates, was assaulted by á jailer and the same jailer threatened appellant, according to appellant, without cause or provocation — this testimony has not been refuted by the State. Moreover, the State did not call the jailer to testify in seeking to establish the voluntariness of the confession. The failure to call the jailer, as a witness, was fatal to the State’s case. The jailer was a material witness; the unprovoked threats of physical violence, as related by appellant, stand uncontroverted. To argue that the jailer was not a material witness because he was not present when appellant gave the confession does not come to grips with the issue. For example, the State called Chief of Police Gary Wilson, as a witness, although he was not present when appellant gave the purported confession. In articulating the reason for calling the Chief of Police, the prosecuting attorney said: “I have called you in order to comply with the law that we should have everybody here that had anything to do with these statements. . . .”

The Chief of Police was in an adjacent room while appellant was making the confession, but had talked to appellant prior to December 15th, just as the jailer had done on the occasion the purported threat was made to appellant. It is plain that the trial judge regarded appellant’s testimony, relating to the assault of Ronnie Wayne Gates by the jailer, and the threats the jailer made to appellant as material and relevant to the Denno hearing for the trial court directed appellant, over objections, to answer the following question, on cross-examination, regarding the threats purportedly made by the jailer: “Q. Okay, but that didn’t have anything to do with you giving a statement or confession did it?” The failure to call the jailer alone dictates a reversal in this case.

An in-custody confession is presumed to be involuntary and the burden is on the State to show that the statement was voluntarily made. Furthermore, the State has the burden to produce all material witnesses who were connected with the controverted confession or give adequate information for their absence. Smith v. State, 254 Ark. 538, 494 S. W. 2d 489 (1973).

The circumstances in this case, prior to and during the purported confession, are classic examples of those techniques that psychological coercion is grounded upon in order to destroy the will power through fear. Torture of the mental processes can be just as devastating as force upon the body.

In Payne v. State of Arkansas, 356 U.S. 560 (1958), the United States Supreme Court in reversing the appellant’s conviction which was based upon a confession made the following observation:

The use in a state criminal trial of a defendant’s confession obtained by coercion — whether physical or mental — is forbidden by the Fourteenth Amendment.

. I have been authorized to state that Hays and Newbern, JJ., join in this dissent.

       Ronnie Wayne Gates is an associate and co-defendant of appellant who was also in jail. Wilson is Chief of Police Gary Wilson of Newport.


author: Marian F. Penix, Judge. David Newbern, Judge,

text:
    Yvonne WILLIAMS v. EMPLOYMENT SECURITY DIVISION, Arkansas Department of Labor, Henry L. McHENRY, Administrator and GENERAL TELEPHONE COMPANY OF THE SOUTHWEST
    CA 79-24
    594 S.W. 2d 52
    Opinion delivered January 30, 1980
    Released for publication February 20, 1980

      Jones & Tiller, by: Marquis E. Jones, for appellant.

      Thelma M. Lorenzo, for appellees.
   Marian F. Penix, Judge.

The Appeal Tribunal modified an Agency determination and denied the claimant unemployment benefits under the provisions of Section 5(b)(2) of the Arkansas Employment Security Law. On appeal to the Board of R.eview the Appeal Tribunal’s, decision was affirmed but was modified from disqualification under 5(b)(1) to show disqualification within the meaning of Section 5 (b)(2). Claimant appeals to this court.

The claimant worked for General Telephone Company in Jacksonville, Arkansas, from June 1976 until her discharge in April 1979. The reason given for discharge by the employer was the claimant had attempted to take certain charges off her personal telephone bills. The employer’s representative testified the claimant had been warned about the same conduct previously. The claimant had submitted a number of adjustment forms to her employer in an attempt to take off her phone bill, certain installation and long distance charges. The claimant contended all these were submitted in good faith because she contended there had been malfunctions in the equipment which caused the charges to appear on her personal bill. The employer’s representative stated the employer’s investigation of the charges clearly indicated the claimant was attempting to defraud the employer by trying to avoid the payment of legitimate charges.

Section 5(b)(1) of the Arkansas Employment Security Law provides for disqualification “If he is discharged from his last work for misconduct in connection with the work.” Section 5(b)(2) provides for disqualification “If he is discharged from his last work for misconduct in connection with the work on account of dishonesty, drinking on the job

The claimant alleges she was denied due process when she was not properly notified of the charges upon which the Appeals Referee’s decision was based. The claimant asserts she was denied proper notice upon which to prepare her defense. We find no absence of procedural due process. Both disqualifications are couched in terms of “misconduct at work”. Section 5(b)(2) specifies the misconduct at work involves dishonesty. There is no evidence the claimant was surprised at the specific misconduct in connection with her work. The evidence presented before the Appeals Referee was the same as that presented before the Agency. Therefore we find the claimant was in no way harmed by the modification made by the Appeals Referee.

The testimony of the claimant and the testimony of the employer’s representative were somewhat contradictory as to the claimant’s intent to defraud the employer. The credibility of witnesses is solely within the province of the trier of facts. The Tribunal made a finding the preponderance of the evidence shows the claimant wrongfully submitted the adjustment forms with the intent to defraud her employer. There is substantial evidence to support the decision.

We find no reason to disturb the finding of the Appeals Tribunal as upheld by the Board of Review.

Affirmed.

Howard and Newbern, JJ., dissent.

Hays, J., not participating.

David Newbern, Judge,

dissenting. This is another case in which the notice to the employee to appear before the appeals tribunal specified a particular section pursuant to which the claimant had been found by the agency to be disqualified, and the referee upheld the disqualification based on a different section. I continue to believe this misleading kind of notice is insufficient to afford the claimant administrative due process, and I dissent for the reasons stated in my dissenting opinion in Teegarden v. Director, Arkansas Employment Security Division, 267 Ark. 893, 591 S.W. 2d 675 (Ark. App. 1979).

My dissatisfaction is increased by the apparent ease with which this problem could be solved. The notice, in my view, would be adequate if the hearing before the appeals tribunal were billed as a de novo determination of the claimant’s right to unemployment compensation. In the Teegarden case, I said the notice would have to be considered too broad if no issue were specified. I continue to hold that view if the job of the appeals referee is to review the agency determination. But if, as seems to be the case, the appeals referee is authorized to make an independent determination, without respect to the agency determination, and if the claimant is notified his or her entitlement will be determined as if no prior determination had been made; the notice would be adequate.

Judge Howard joins in this dissenting opinion.


author: Marian F. Penix, Judge. George Howard, Jr., Judge, David Newbern, Judge,

text:
    James Lee DAVIS v. STATE of Arkansas
    CA CR 79-115
    594 S.W. 2d 47
    Opinion delivered January 30, 1980
    Released for publication February 20, 1980

      Edwin A. Keaton, for appellant.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Marian F. Penix, Judge.

Appellant Davis appeals from a jury conviction on Aggravated Robbery and a sentence of 25 years. He appeals also from a sentence of an additional two years upon the revocation of probation.

Davis was charged with the robbery of the First National Bank Main Branch of Camden, Arkansas which occurred April 23, 1979. OnJanuary31,1979, Davis pled guilty to a charge of Criminal Use of a Prohibited Weapon. He was fined $100 and placed on five year probation. A Petition for Revocation of Probation was filed and scheduled to be heard April 25, 1979. Davis’ court appointed counsel moved for a continuance and it was granted. On May 4, 1979, Davis’ attorney filed a Notice of Defense stating he intended to raise a defense to the bank robbery charge and to the alleged violations of conditions of probation, his lack of capacity as a result of mental disease or defect, to conform his conduct to the requirement of law and to appreciate the criminality of his conduct. On May 4, the trial court ordered Davis committed to the Arkansas State Hospital for observation and examination. On May 22, Davis filed a Motion for Continuance to enable his counsel to acquire medical information and records relative to Davis’ prior commitment in a mental institution in Buffalo, New York in January, 1978, and because no report had yet been issued by the Arkansas State Hospital. Before trial, Davis received the State Hospital report. On June 22, 1979, Davis was convicted.

I

Davis contends there was error in the court’s denial of the Motion for Continuance to secure the medical records from New York and to secure records of Davis’ military service.

Davis contends he was forced to trial without proper preparation. Not guilty by reason of mental disease or defect must be proven by a preponderance of the evidence. Davis’ attorney received a discharge diagnosis summary from New York which described Davis’ “acute schizophrenic episode”. It noted that Davis had been brought to the New York Medical Center following his appearance at a TV station where he posed as an FBI agent. It noted that Davis did this because voices told him to do so. It also pointed out Davis’ thought content was delusional and he complained of hearing voices and seeing things. The New York doctors were the only ones who examined and treated Davis for a condition where Davis complained of committing an unlawful act upon the command of voices. Davis’ attorney sought to obtain the New York hospital’s supporting data and basis for its diagnosis as noted in the discharge summary. Because of certain required procedures Davis’ attorney had not yet received the data and records. The trial court refused to allow a continuance, finding the reports of the Arkansas doctors were sufficient for a determination by the jury. The Arkansas doctors’ testimony was that Davis was without psychosis. Also, the court found whatever the New York reports contained would be added evidence only to that already introduced and were unnecessary to Davis’ defense.

The court noted that on the issue of insanity Davis had the State Hospital report of May 24, 1979 which indicated he was without psychosis, able to assist in his defense and probably sane at the time of the offense. Further, Davis had the reports from the South Arkansas Mental Health Center stating on August 19, 1977 and December 15, 1978, Davis was without psychosis and able to assist in his defense. With the additional discharge summary from New York, the trial court concluded there was adequate medical information on the issue of insanity and therefore denied the motion for continuance.

Factors which must be considered by trial courts in exercising their discretion in granting or denying a motion for continuance are the probable effect of the testimony or evidence, the likelihood of procuring the evidence, and its relevancy. Worley v. State, 259 Ark. 433, 533 S.W. 2d 502 (1976). There was no showing if the evidence did exist and was obtained that it would be relevant to the issue of Davis’ sanity at the time of the offense and at trial.

Davis relies on Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979). However, in the instant case, Davis was not denied crucial evidence. In Westbrook, the defendant had asked for records from the State Hospital relative to two prior commitments. He had been granted the same on paper but had not received the records at the time of trial. Davis had in his possession all the state medical records pertinent to his mental condition. He was not denied evidence which was crucial to his defense. Here there is no showing that there was additional material evidence obtainable. We cannot say the trial court abused its wide discretion in refusing a further continuance.

II

Davis contends the court erred in denying Davis’ challenges for cause against two prospective jurors.

The prosecuting attorney was questioning the prospective juror Willie Arnold. Mr. Arnold stated in reference to finding Davis guilty or innocent he (Arnold) would “go along with the bunch’ ’. Davis contends that under the rationale of McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979), Mr. Arnold should have been excused. In McCree, the Supreme Court held it was proper for the trial court to excuse for cause a prospective juror who indicated he was unequivocally opposed to the death penalty. In that case the state was seeking the death penalty.

In reviewing the entire exchange during voir dire it appears Mr. Arnold misunderstood what was required of him as ajuror. The court explained to him what his duty was and determined Arnold would in fact stick by what he felt was right regardless of what the other jurors thought.

In questioning the prospective juror Sylvia Nutt, Ms. Nutt stated she could not definitely say she would not be biased because she herself had been a victim of a theft. In response to the trial court’s questions, she did indicate, she would try her best to be fair and.impartial to both the State and to Davis, and there was no indication she had already made up her mind as to Davis’ guilt or innocence. There is no evidence she had made a pre-judgment.

Our Supreme Court has allowed large discretion in the trial court’s determination of a prospective juror’s bias or prejudice as affecting his qualifications to serve. The question of the impartiality of the jury is a judicial question of fact within the sound discretion of the trial court. Strode v. State, 257 Ark. 480, 517 S.W. 2d 954 (1975).

III

Davis alleges error in the court’s answer to the jury on its query during deliberations.

Prior to rendering a verdict the jury returned and asked:

The jury is concerned that if by chance the young man is incarcerated, is it possible he will receive some form of psychiatric help while he is in prison?

The court’s response was:

All right, now, ladies and gentlemen, the only way I can possibly answer that question is that the Department of Corrections is operated by a Board of Corrections, which is a part of the executive branch of government. The judicial branch of the government, or the Courts, have no control over the Department of Corrections.
The Department of Corrections of course has the authority to administer such medical or mental services as they may be deemed the inmates might need. That’s as far as I’m permitted by law to answer that question, because I could give you no guarantee one way or the other, certainly.

We find nothing in the court’s response which could be construed as erroneously invading the province of the jury. See Moore v. State, 231 Ark. 672, 331 S.W. 2d 841 (1960).

Finding no reversible error, we affirm.

Affirmed.

Howard and Newbern, JJ., dissent.

George Howard, Jr., Judge,

dissenting. I dissent inasmuch as I am of the view that the trial court erred in not excusing Mrs. Sylvia Jo Nutt for cause, over the objections of appellant’s attorney, which required the defendant to exercise one of his peremptory challenges in order to excuse Mrs. Nutt from serving as a juror.

During voir dire, the following exchange took place between the attorney for appellant and Mrs. Nutt:

MR. KE AT ON: Have either of you been either the victim of a robbery or had one of your'friends or relatives, loved ones, who have been the victim of a crime, robbery or any type of crime?
MRS. NUTT: We had a robbery. We had a robbery last year. Our property was returned to us quickly.
MR. KEATON: Okay, do you think that’s going to cause you any I guess, somewhat sympathetic feeling toward another victim who is the victim I guess of — what appears to be the victim of a crime.
MRS. NUTT: I hope not.
MR. KEATON: You think it might cause a few problems?
MRS. NUTT: Well I hope that it wouldn’t. But I can’t say definitely that it would.
* MR. KEATON: Okay, I guess what you’re really shying is that it might?
MRS. NUTT: There’s a far out chance that it might.
MR. KEATON: Okay. Even though like you already heard the Court instruct you as to what the law is and you know, what your duties are, and even after considering that, you still I guess in your mind, would be saying a slight reservation that it might cause you some problems to be somewhat sympathetic to I guess First National Bank.
MRS. NUTT: I’d make every effort for it not to be.

The following exchange took place between the Court and Mrs. Nutt:

THE COURT: Mrs. Nutt, if you were selected to serve on this jury, could you go into the jury box and be both fair and impartial to both the State of Arkansas and this defendant?
MRS. NyTT: I would hope so. I would try my best to.
THE COURT: Okay. In other words, now we’re here to listen to the witnesses tell us what happened.
MRS. NUJT: That’s right.
THE COURT: Because something happened last month, last year, ten years ago to you, is not going to affect you in determining the innocence or guilt of this defendant, would it? It could have no bearing, could it?
MRS. NUTT: Ithad no bearing on what happened to me. I hope that I’d be able to separate that from my own personal experience.
THE COURT: So you keep saying ‘hope,’ and ‘try’ and all that, and what — I guess I’m at a loss to understand how it could affect what the facts in this case are.
MRS. NUTT: I’m a real bad person at being able to see both sides.
THE COURT: You want to see both sides, and that’s what both of them want you to see, and if you go in the jury box, will you listen to what the witnesses say, and determine guilt or innocence, solely on the basis of what you hear from the witness stand?
MRS. NUTT: I think I could. I can’t be any more definite than that.
THE COURT: Í realize — I say it’s just like my wife, I think. Will you? Let me put it that way.
MRS. NUTT: I will.
THE COURT: All right. I think that she’s being as honest as she can be, and I think we sometimes nitpick as I call it with jurors when they are trying to be honest, and say, T really think I can,’ and I believe you can, and having known you for a long time, I believe you can. Your challenge is denied and your exceptions is saved.

Inasmuch as it is plain from the record that appellant ultimately exhausted all of his challenges, the ruling of the trial court may not be characterized as harmless error.

In Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670, our Supreme Court made it clear that every accused is entitled to a fair trial by a panel of impartial and indifferent jurors. A failure to accord an accused this right violates the standards of due process.

David Newbern, Judge, dissenting.

David Newbern, Judge,

dissenting. I believe the trial court’s abuse of discretion in denying the appellant a continuance for the purpose of attempting to obtain additional medical evidence from New York was patent. I can, in no meaningful way, distinguish this case from Westbrook v. State, 265 Ark. 756, 580 S.W. 2d 702 (1979), and the majority opinion certainly does not do so.

In Westbrook, the accused sought medical notes which Arkansas hospital diagnoses were based upon. The supreme court held refusal to grant a continuance to permit the defendant to obtain them was error.

I do not know what the trial judge meant by “added evidence.” If he meant “cumulative evidence,” I think he was wrong. A discharge summary showing a ‘ ‘schizophrenic episode’ ’ is hardly the kind of powerful evidence the detailed medical notes leading to that diagnosis might have been. The appellant needed that evidence because it, unlike the local reports, was indicative of his condition prior to the alleged offense. It apparently would have been as diametrically opposed as possible to the reports of the Arkansas agencies with respect to the probable condition of the appellant at the time the offense was committed. Thus, I cannot agree that it would in any way have been cumulative. For the very reason that it would have been “added evidence,” I believe it was necessary to grant the continuance.

Nor does it matter that the appellant did not know for certain he could obtain the reports he sought. Note the language of the opinion in the Westbrook case:'

Due to the nature of the defense we feel it was necessary that appellant have these records, if they exist, in order to fully prepare his defense. . . ! It may be that something in these records would have enabled appellant to furnish stronger proof on his behalf. [580 S.W. 2d at 707. Emphasis supplied.]

For this reason, I dissent.


author: George Howard, Jr., Judge.

text:
    Ocie JUSTICE v. James H. EUBANKS and Virginia EUBANKS, Husband and Wife, and Bill BATES and Ms. Bill BATES, Husband and Wife
    CA 79-175
    594 S.W. 2d 55
    Opinion delivered January 30, 1980
    Released for publication February 20, 1980

      Richard L. Peel, for appellant.

      Priddy & Hardin, for appellees.
   George Howard, Jr., Judge.

This is an appeal from a decree quieting title to a 40 acre tract of land in James and Virginia Eubanks, on the theory that Bill Bates and Ocie Bates, former title holders, made an oral property settlement prior to their divorce in 1951, whereby Bill would receive the lands in question free of any claim of Ocie.'

On February 19, 1945, Bill Bates, an appellee, and Ocie Bates (now Ocie Justice, appellant), received, as husband and wife, a warranty deed to a 40 acre tract of land from the widow and heirs of R. L. Bates, deceased father óf Bill Bates. Bill and Ocie were divorced on March 8, 1951. The divorce decree made no reference to the lands held by the parties as an estate by the entirety. However, Bill testified that he received the property under an oral property settlement before the divorce. Ocie denies that there was ever any discussion about the property and says that it was her understanding that she and Bill still owned the lands.

On March 22, 1952, Bill Bates conveyed the lands to Charley and Mary Shuffield, husband and wife, by warranty deed. It is undisputed that appellant never executed a conveyance disposing of her interest.

On May 26, 1956, the Shuffields conveyed the lands to James H. Eubanks .by warranty deed.

Between March 22, 1952, and May 26, 1956, the Shuffields paid the Ad Valorem Taxes on the property, fenced the property and cultivated one acre in cucumbers while the remainder of the open land was used as a pasture for cattle.

From 1956 to November 20, 1978, the date appellant instituted her action for partition, James Eubanks mortgaged the property three times to the Bank of Dover to secure personal loans, cut the.hardwood, placed the lands in the Soil Conservation Program and paid the taxes.

Appellant admitted that she has never paid any taxes on the property and was personally aware that both the Shuffields and James Eubanks were in possession of the property making extensive improvements, i.e., Shuffield built a home on the property.

Possession under color of title for seven consecutive years confers title in lands by limitation. Parsons v. Sharpe, 102 Ark. 611, 145 S.W. 537 (1912); Vick v. Berg, 251 Ark. 573, 473 S.W. 2d 585 (1971). See Also. Reynolds v. Snyder, 121 Ark. 33, 180 S.W. 752, 183 S.W. 979 (1915).

We are persuaded that a preponderance of the evidence in this case, upon a trial de novo, establishes title to the property in James E. Eubanks and Virginia Eubanks in meeting the requirements of adverse possession under color of title for more than the statutory period of seven years. Harrison v. Collins, et al, 247 Ark. 210, 444 S.W. 2d 861 (1969).

Affirmed.


text:
    Frank ANDERSON v. STATE of Arkansas
    CA CR 79-118
    594 S.W. 2d 54
    Opinion delivered January 30, 1980
    Released for publication February 20, 1980

      John W. Achor, Public Defender, by: Jeffrey M. Rosenzweig, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Judge.

Appellant was charged with.first degree murder. The jury found him guilty of murder in the second degree and fixed his punishment at twenty (20) years in the Department of Correction.

The relevant facts are: On October 13, 1978, Willie O’Neal, Jr. was killed by a gunshot while participating in a “crap game” at a private residence. Appellant was immediately taken into custody by police officers who advised him of his rights. Appellant was placed in the rear compartment of the police vehicle of Officer Thomas Johnson. While enroute to the police station, appellant purportedly said:

“I shot the son-of-a-bitch. I wish I had shot him sooner.”

During the Denno hearing conducted by the trial judge (a hearing conducted in chambers to determine the voluntariness of the statement), appellant admitted that he was advised of his constitutional rights, but denied making any statements in the police car.

The trial court found that appellant voluntarily made the statement and, consequently, the statement was admitted into evidence.

Appellant argues that the evidence not only fails to support a finding that the statement was voluntary, but falls short of showing that the statement was actually made.

It is settled law that appellate courts, in reviewing a finding of voluntariness of a purported admission, make an independent determination based upon the totality of the circumstances and the trial judge’s finding will not be disturbed unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).

Moreover, the State has the burden of proving that an in-custodial statement is free and voluntary. Rutledge v. State, 263 Ark. 781, 567 S.W. 2d 283 (1978).

Officer Johnson testified that appellant, on his own volition, admitted shooting the decedent. It is clear that, when the statement was allegedly made, appellant was occupying the rear compartment of the police vehicle while Officer Johnson occupied the front compartment. A metal screen separated the two compartments. Only these two individuals occupied the vehicle. Appellant admitted firing a weapon five or six times in order to “warn or scare” the decedent, but did not “mean to kill him.”

Dr. Fahmy Malak, State Medical Examiner, testified that he performed an autopsy on the remains of the decedent and found two bullet wounds, one of the head and one of the abdomen; that the shot to the head was from back to front and was fatal.

The conflicting testimony of appellant and Officer Johnson, regarding the alleged admission of the appellant, presented a fact question. As the fact finder, it was the responsibility of the trial court to resolve the conflict. Credibility of the witnesses was also a matter to be considered and determined by the trial judge. Bell & Walker v. State, 258 Ark. 976, 530 S.W. 2d 662 (1978); Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978).

We are unable to say that the trial court’s finding is not supported by a preponderance of the evidence and, accordingly, we affirm.


author: David Newbern, Judge.

text:
    Leza PRICE, Jr. v. STATE of Arkansas
    CA CR 79-72
    599 S.W. 2d 394
    Opinion delivered January 30, 1980
    Affirmed by Supreme Court April 28, 1980
    Released for publication May 21, 1980

      Givens & Buzbee, by: Art Givens, for appellant.

      Steve Clark, Atty. Gen., by. Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   David Newbern, Judge.

The appellant was convicted of theft of an automobile of a value in excess of $2500 and sentenced to 20 years confinement and afine of $15,000. His appeal raises the question whether evidence of previous offenses should have been admitted and whether the prosecutor’s closing remarks were so calculated to inflame the jury as to be a ground for mistrial. We affirm the conviction.

Billy Reno, a co-defendant who decided to plead guilty apparently shortly before the trial, testified that he and the appellant had been working together stealing cars. He said-on the day the offense charged was committed he and the appellant drove to Benton and to a used car lot there with the intent to steal a car. While the appellant distracted the salesman, Reno took the keys to a Cadillac from the top of the hood of the car and replaced them with other keys. That night, after the business had closed for the day, the appellant brought Reno back to. the lot where he started the car and began driving it away.

In the meantime, the substitution of the keys had been noticed by the employees and owner of the car lot, and a policeman was waiting in the car lot office after closing time. As Reno attempted to drive the car from the lot, he was shot by the policeman and arrested.

In corroboration of Reno’s testimony, the appellee played for a jury the recording of a telephone conversation between the appellant and Passmore, a police informant. In the conversation the appellant complained of the “stake out” where his buddy had about been “blown away.” He referred to having gotten a truck to which he was afraid to return, to having “gotten” two other cars, to arranging for fake drivers’ licenses and bills of lading for vehicles, and to setting up an alibi for some event, apparently the one charged here, by saying he was at Memphis or West Memphis.

The appellant objected to both the testimony of Reno and the tape on the basis that they contained evidence of other offenses committed by the appellant. With respect to the tape recording, the appellee alleges the appellant could have had access to it before the trial, presumably by a discovery motion pursuant to Ark. R. Crim. P. 17.1 (a) (ii), and that his failure to move to suppress the tape before the trial in accordance with Rule 16.2 waived any objection.

Whether this recorded statement falls within the purview of Rule 16.2 is a question the answer to which we will save for another day. We have at least some doubt whether a rule which is phrased in terms of suppression of things “seized” applies to a statement obtained in the manner described. To answer in the affirmative we would be required to find it fits the definition of “seizure” in Rule 10.1 (b) as “. . . the obtaining of information by an officer . . . under . . . color of authority.”

We need not reach all the questions such a determination would require, as both the recorded statement of the appellant and Reno’s testimony raise the same issue. Reno’s testimony would not be left uncorroborated by exclusion of the tape recording, as the owner of the car lot testified that the appellant had been.on the lot the day in question, that the green and white truck he and Reno had been driving earlier was seen driving past the lot shortly before Reno attemted to take the car, and the appellant was seen driving the truck past the lot an hour after the event. In addition, the appellant admitted having been on the lot with Reno earlier in the day. The corroboration of an accomplice’s testimony required by our statute, Ark. Stat. Ann. § .43-2116 (Repl. 1977), is only that which tends in “some degree” to connect the accused with the crime. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978); Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1943). Unlike Pollard v. State, 264 Ark. 753, 574 S.W. 2d 656 (1978), we have here evidence other than the testimony of an accomplice directly connecting the appellant to the offense, i.e., the testimony of a car lot employee that the appellant had diverted his attention from the car to be stolen while Reno exchanged the keys. The employee testified the appellant asked to look at a truck on the other side of the lot from the place where the Cadillac was parked. He was not, however, sufficiently distracted to miss seeing Reno remove the keys which had been atop the hood of the Cadillac and then walk behind the truck the appellant and Reno had been driving and then return to the Cadillac and place on it a set of keys which turned out to be different ones. It was this act of picking up and putting down keys that aroused the car lot personnel to suspect the appellant and Reno.

Thus, we come to the question whether the evidence tending to show other offenses was admissible. The applicable evidence rule is Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be. admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This is one of the rules of evidence which is most difficult to apply. It codifies the rule which was in existence before it was adopted, and it has been the subject of numerous decisions in the Arkansas Supreme Court and other appellate courts. Although much similar language is found in the cases, the decisions seem to have been pretty much ad hoc. As long as the purpose of the rule is kept in mind, however, ad hoc application of it may be in order.

The most helpful of the Arkansas decisions is Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954), in which Justice George Rose Smith discussed the rule and identified the problem in its application as being whether one of the “so-called” exceptions, in that case, evidence of another crime tending to prove “intent,” was present. This suggests a fairly mechanical approach to the rule which apparently was not the intent of its .modern version drafters. Our rule is drawn from the federal rule, and a discussion of the intent of the drafters is found in The Federal Rules of Evidence: A Symposium, 71 Nw. U.L.R. 634 (1976). In that article, the authors suggest two possible approaches to the “other offenses” problem. One would emphasize admissibility by viewing the words “such as” in the rule as indicating the list following to be exemplary only. The other would admit the evidence only if it fell strictly within one of the categories.

In our view, the rule should be interpreted to exclude evidence of other offenses when its only purpose is to show the accused’s character or some.general propensity he might have to commit the particular sort of crime in question. It should not be interpeted to exclude evidence of other offenses when that evidence is probative of the accused’s participation in the particular crime charged. If it is probative of his participation the only remaining question should be whether it is so prejudicial that it should be excluded because the prejudice brought about by exposition of other offenses is not sufficiently balanced by the probative value of the evidence on the facts sought to be proved. See, Rule 403.

Although Rule 403 was not specifically in issue at the trial and has not been cited by the appellant here, we think it must be included in the ultimate determination of admissibility. This is the approach applied in U.S. v. Dansker, 537 F. 2d 40 (3rd Cir. 1976), and suggested in the article cited above.

A good example of the approach is the decision in U.S. v. Coppola, 526 F. 2d 764 (10th Cir. 1975). The court said:

As to the evidence that the government offered, it is to be noted that inasmuch as Molina was admittedly the actual killer, it was relevant to introduce evidence of Coppola’s heroin traffic so as to demonstrate his motive for and connection with the murder. After all, the government was seeking to show that Coppola was trying to maintain his position as the principal narcotics distributor at Leavenworth. Herman’s testimony supported this, and so the government’s evidence in this area had probative value and was thus properly admitted. [Citations.]
From a careful examination of the record, we are convinced that the government organized and presented its evidence in an effort to validly utilize this evidence and not to exploit it as a means in and of itself to convict the defendant. [526 F. 2d at 772]

Note that the court used one of the terms from the “exceptions” part of the rule, that is, “motive,” but did not limit itself to that, as it added, “and connection with” the offense. The balancing came at the end of the quotation where the court assured itself the evidence was not being used “as a means in and of itself to convict the defendant.”

In this case, the evidence of other offenses showed a strong connection between the appellant and Reno. The appellant took the stand to deny any intent to participate in the theft. He said he had gone to the lot with Reno to act as co-signer on a note in the event Reno found a car he wanted to buy. We believe the question of his intent with respect to some of his conduct was raised in this case by him, and the evidence had a “true relation to the issue of intent” and thus it would be admissible under the standard stated by Justice Smith in the Alford case, 223 Ark. at 338.

In conclusion on this point, we apply the standard of the Alford case with an elaboration, somewhat as stated by the Eighth Circuit Court of Appeals in U.S. v. Conley, 523 F. 2d 650 (8th Cir. 1975), cert. den., 424 U.S. 920(1976). First, an issue must be raised as to which the “other offenses” evidence relates. Second, the proffered evidence must be clear and convincing, and third, the probative value of the evidence must outweigh its unwarranted prejudicial effect.

In this case we find the evidence related to the intent or motive of the appellant — an issue his denial and explanation clearly raised. The “other offenses” evidence was very clear and convincing that he and Reno were conducting a car stealing operation, and tended to refute the appellant’s explanation of his conduct. The probative value of the evidence thus was strong, and it outweighed any possibly undue prejudice to the appellant.

The other point raised by the appellant was the failure of the trial court to grant a mistrial when the prosecutor, in describing the acts of the appellant, made what he called an analogy to a “dope trafficker” who used others to commit offenses for his benefit. This reference was made in a way which left no doubt the prosecutor was not describing the appellant as a “dope trafficker,” and no mistrial was warranted. We see nothing inflammatory in the remark.

Affirmed.


text:
    Robert Lee CURRIE v. STATE of Arkansas
    CA CR 79-116
    594 S.W. 2d 56
    Opinion delivered January 30, 1980
    Released for publication February 20, 1980

      P. A. Hollingsworth and Janet L. Pulliam, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   David Newbern, Judge.

The question here is whether a motion for new trial was filed in time. The appellant was convicted of second degree battery by the court sitting without a jury at a trial held April 10, 1979. On that same date, and at the time the verdict was announced, the trial judge announced a sentence of five years confinement with two years suspended. A judgment including that sentence was signed April 11, 1979. Then the appellant moved to be allowed to present matters in mitigation, and the court held a mitigation hearing on May 8, 1979. A document referring to the mitigation hearing appears in the record, and it concludes as follows: “Sentence imposed as previously stated at the Court Trial on April 10, 1979.”

Notice of appeal was filed May 8,1979, and a motion for new trial was filed May 25, 1979. Thus, the motion was filed within 30 days after the mitigation hearing but not within 30 days of the first pronouncement. Ark. R. Crim. P. 36.22 provides, in part:

A person convicted . . . may file a motion for new trial. . . but [it]. . . must be filed prior to the time fixed to file a notice of appeal.

Although in this case the notice of appeal has been filed, that is irrelevant, as the rule gives the appellant the “time fixed to file a notice of appeal” to file his motion for new trial. The “time fixed” for filing notice of appeal is 30 days “from the date of the sentence and entry of judgment by the trial judge.” Ark. R. Crim. P. 36.9.

On October 11, 1979, the trial judge entered an order denying the motion for new trial, and reciting that it had not been timely filed in accordance with Rule 36.22.

The appellee concurs in the appellant’s position that the order was incorrect, as the ultimate pronouncement of sentence occurred May 8, 1979, and the time for filing notice of appeal and thus for moving for new trial commenced that date rather than the earlier one. We agree with the parties.

The appellant is thus entitled to a hearing on the merits of his motion for a.new trial, and the case is remanded to the trial court for that purpose.

The appellant has raised two other points for reversal with which we do not deal in view of the necessity of remanding for the hearing on the motion for new trial. If the trial court denies the motion for á new trial, after a hearing, we will resume jurisdiction of this case to rule on the appellant’s other two grounds for reversal. In that case, the appellant will give written notice to the appellee of the trial court’s ruling, and the appellee will have 21 days from receipt of such notice to file a brief responding to the appellant’s points II and III.

Any such resumption of jurisdiction to consider those points will, of course, be without prejudice to any appeal the appellant may perfect as a result of the trial court’s ruling on his motion for new trial.

Reversed and remanded.


author: PER CURIAM

text:
    Andrew J. MONFEE et al v. THE URBAN RENEWAL AGENCY OF THE CITY OF NORTH LITTLE ROCK, ARKANSAS
    79-58
    590 S.W. 2d 32
    December 3, 1979

      Howell, Price, Howell, P.A., for appellants.

      Wallace, Hilburn, Clayton, May & Calhoun, Ltd., for appellee.
   PER CURIAM

Upon motion of appellants, this case is remanded to the Chancery Court of Pulaski County and that court is reinvested with jurisdiction for the sole purpose of determining the effect of Resolution No. 1774, adopted by the City Council of the City of North Little Rock, Arkansas, upon its decree from which this appeal is taken.

The Chief Justice, George Rose Smith and Byrd, JJ., did not participate in the consideration of this motion. Special Justice William S. Arnold agrees.


author: John A. Fogleman, Chief Justice.

text:
    C. V. STEED v. Paul BUSBY and Floyd BUSBY
    79-175
    593 S.W. 2d 34
    Supreme Court of Arkansas
    Opinion delivered February 4, 1980

      Butler, Hicky & Hicky, for appellant.

      Sharpe & Morledge, P.A., for appellees.

   John A. Fogleman, Chief Justice.

This is a suit by C.V. Steed to collect the unpaid balance on a rent note executed by appellees, Paul and Floyd Busby. Steed held a lease on 500 acres of land near Forrest City, which he had, for more than ten years, subleased either to appellees Paul and Floyd Busby or to their father. On or about January 1, 1976, Steed rented the lands to appellees (to whom we will refer as Busby Brothers) for a rental of $19,500, of which $1,000 was paid at the time. The balance was represented by a rent note for $18,500 due November 15, 1976. The agreement was entered into by Steed and Paul Busby, but both brothers signed the rent note. On December 6, 1976, Busby Brothers paid Steed $13,534, but refused to pay the balance of $4,966.

Busby Brothers filed an answer to Steed’s complaint and a counterclaim. They alleged that they had lost rice crops valued at $4,030 by reason of Steed’s refusal to replace a rice well, although he had agreed to repair and replace rice wells on the farm. They also alleged that they had replaced the well which failed during the crop season at a cost to them of $5,-200. Steed replied, alleging that the rent note constituted the entire agreement between the parties and that he was not obligated to replace the well. Steed’s pleading was filed on June 9, 1977. The case came to trial on February 22, 1979, and a jury verdict for Busby Brothers was rendered. On the basis of the verdict, a judgment dismissing Steed’s complaint and allowing $500 damages on the counterclaim of Busby Brothers was entered. Steed has appealed from the judgment and from the trial court’s denial of his rpotion for judgment notwithstanding the verdict. We find no reversible error and affirm.

Steed first argues that the trial judge erred in permitting Busby Brothers to amend their counterclaim by a pleading filed on the day before the trial, but not received by Steed’s attorney until 9:00 a.m. on the date of trial, to increase the amount of damages sought from $4,030 to $8,000, over Steed’s objection. The case had been at issue since the filing of Steed’s reply, but the trial had been continued twice, once upon Steed’s motion and once upon the motion of the Busbys.

In the amendment, Busby Brothers simply alleged that the damage for crop loss had been $8,000 instead of the $4,-030 sought in the original counterclaim. Appellant merely states that the court’s allowance of this amendment was a prejudicial abuse of discretion, without citation of authority or convincing argument, so we might disregard this point under the rule of Dixon v. State, 260 Ark. 857, 545 S.W.2d 606. We point out, however, that, under Ark. Stat. Ann. § 27-1160 (Repl. 1962), the trial court is authorized to amend pleadings or to conform them to the facts proved. We have held that this statute vests a broad discretion in the trial court to permit amendments of pleadings, that pleadings should be liberally allowed in the furtherance of justice and that the exercise of the trial court’s discretion will be sustained unless there has been a manifest abuse. Bill C. Harris Construction Co. v. Powers, 262 Ark. 96, 554 S.W. 2d 332; Bonds v. Littrell, 247 Ark. 577, 446 S.W. 2d 672. The party seeking reversal on this ground must show that there was a manifest abuse of discretion which materially prejudiced him. McMillan v. Meuser Material & Equipment Co., 260 Ark. 422, 541 S.W. 2d 911.

Steed also contends that the trial court erred by permitting appellees to introduce evidence in support of their counterclaim to which he objected and which the trial judge later told the jury to disregard. Appellant’s argument is purely a statement of generalities and conclusions. He does not specify the evidence to which he has reference, except by saying that astronomical figures were placed upon a blackboard based upon leading questions asked Paul Busby by appellees’ attorney and by quoting the court’s admonition to the jury to disregard the figures on the blackboard. It appears that the testimony was given in an effort to show damages by comparing the amount of rice harvested from one field on the farm in 1975 and that harvested in 1976, and multiplying the yields by the price per bushel received by Busby Brothers in 1976. Objection was made to the testimony on the ground that it was speculative and showed damages greater than alleged in the pleadings and appellant moved that it be stricken. It appears that appellees’ attorney had been writing figures on a blackboard and merely obtaining confirmation by asking the witness leading questions. The trial court, after objection had been made, gave appellees’ attorney the opportunity to get direct testimony from the witness. The circuit judge then instructed the jury to disregard the figures on the blackboard. After all the testimony of both parties had been concluded, the judge again instructed the jury to aisregard the figures on the blackboard, at appellant’s request. Appellant did not move for a mistrial and is in a poor position to complain of the court’s action in doing exactly what his counsel asked the court to do.

The trial court has a broad latitude of discretion in determining the action appropriate to eliminate the prejudicial effect of incompetent testimony. Arkansas State Highway Com’n. v. Shepherd, 239 Ark. 1010,395 S.W. 2d 743. We are unable to say that the trial judge’s discretion was abused in this case.

Steed asserts that the trial court erred in denying his motion for judgment notwithstanding the verdict and that the jury verdict was contrary to the law and to the weight of the evidence. His contentions are stated in two points, but the basic question is the same. We are not concerned with the preponderance of the evidence on this appeal from a judgment based on a jury verdict. We are only concerned with the question whether there was substantial evidence to support the verdict of the jury. Griffith Lumber Co. v. Connor, 255 Ark. 623, 502 S.W. 2d 500. The same question is involved in reviewing the action of the trial court on the motion for judgment notwithstanding the verdict. Wheeling Pipe Line v. Edrington, 259 Ark. 600, 535 S.W. 2d 225; Swafford v. Sealtest Foods Division, 252 Ark. 1182, 483 S.W. 2d 202; Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665.

This question has troubled us more than any other on this appeal. We have concluded, however, that we are unable to say that there is no substantial evidence to support the verdict. Paul Busby testified that the Busbys had rented the land for 11 years, starting in 1965. The well that failed in 1976 was on the land during all that time. According to him, the land was rented to Jim Busby & Sons in earlier years, but when his father, Jim Busby, quit farming, Steed rented the land to appellees. Paul Busby said that there was never a written lease and that the contract was always by “word of mouth” and that the parties “would always deal on a rent note.” According to him, there was a new note signed each year, but no contract was signed. He said that Steed had agreed in 1976 to keep up all wells and Busby Brothers had agreed to furnish all motors and all equipment for working the land. He explained that Busby Brothers had not asked for any written agreement because they had never had any trouble with a well except during 1970 and that they had had that well repaired at a cost of $600, which Steed refused to pay because the Busbys had not asked him to do anything about it and he had not authorized the work.

Busby admitted that when the rent note was signed in 1976, nothing was said about any condition of the rental agreement, except the amount of the rent, but said that in 1975, when the rental agreement was made after his father retired, Steed had said that “we’ll keep everything like it’s been in the past.” When asked to explain “what it was like before,” Busby answered:

Well, we just, you know, he agreed to keep everything up, all the wells up, and the stuff, and we would furnish the motor and the equipment and the stuff to work the ground with.

On cross-examination, the following question was propounded and answer given:

Q. Now, this morning on direct examination, you testified—Well, let me ask you this question: At the time you all were sitting in the car and signed this rent note, did Mr. Steed say to you, “I’ll fix the wells if they go out on this place.” Did he say this at that time?
A. Not that particular year; he told me the year before.

Paul Busby further testified that when the trouble with the well occurred in 1976, he went to Steed’s house and reported the situation, and Steed suggested that they use a well Steed owned on another place if it could be moved. Busby said that after Busby Brothers learned the well could not be used, he again talked to Steed, who suggested that the Busbys get another used well, but after a week, Busby Brothers put down a new well. Steed admitted that he had offered to let the Busbys remove the well on another place and put it in on the lands rented by Busby Brothers, but said that he had told them he couldn’t do anything else. Busby said that he tried, without success, to get Steed’s approval of the new well.

It is true that the evidence partakes of the character of circumstantial evidence. This type of evidence, however, may be sufficient to show either an express or implied contract Rush v. Rush’s Estate, 27 Ill. App. 2d 242, 169 N.E. 2d 538 (1960); Ward v. United States, 158 F.2d 499 (8 Cir., 1946). The two types of contract are not necessarily inconsistent. Johnson v. Whitman, 1 Wash. App. 540, 463 P. 2d 207 (1969). There are two classes of implied contracts, i.e., those properly called implied contracts, where the contract is inferred from the acts of the parties and those which are more properly called quasi-contracts or constructive contracts, where the law implies an obligation. Caldwell v. Missouri State Life Insurance Co., 148 Ark. 474, 230 S.W. 566. The first type of implied contract is sometimes called a contract implied in fact and it derives from the “presumed” intention of the parties as indicated by their conduct. Martin v. Campanaro, 156 F. 2d 127 (2 Cir., 1946). See also, Gray v. Kirkland, 550 S.W. 2d 410 (Tex. Civ. App., 1977); Johnson v. Whitman, supra; United States v. O. Frank Heinz Construction Co., 300 F. Supp. 396 (S.D. Ill., 1969). In determining whether a “tacit” but actual contract exists, the prior course of dealing between the parties is to be considered. Jones v. Donovan, 244 Ark. 474, 426 S.W. 2d 390. An implied contract is proved by circumstances showing the parties intended to contract or by circumstances showing the general course of dealing between the parties. In re Brumshagen’s Estate, 27 Ill. App. 2d 14, 169 N.E. 2d 112 (I960). A contract implied in fact does not describe a legal relationship different from that created by an express contract. Johnson v. Whitman, supra; Restatement of Contracts § 5, Comment a (1932). When an agreement expires by its own terms, if without more the parties continue to perform as before, an implication arises that they have mutually assented to a new contract containing the same provisions as the old, and the existence of the new contract is determined by an “objective” test, i.e., whether a reasonable man would think, from the actions, that they intended to make a new binding agreement. Martin v. Campanaro, supra; cf. Jones v. Donovan, supra. In such a case, .when the parties continue to do business together, their conduct may permit, or even constrain, a finding that they impliedly agree that their rights and obligations should continue to be measured as provided in the old contract. New York Telephone Co. v. Jamestown Telephone Corp., 282 N.Y. 365, 26 N.E. 2d 295 (1940).

If we were able to pass upon the credibility of the witnesses or to weigh the evidence to determine the preponderance, we might well agree with the appellant. Instead, we must consider only that evidence favorable to appellees. We must view the testimony of Paul Busby in that light, because we cannot say that it is entirely without probative force. Hatfield Special School District v. Knight, 118 Ark. 432, 176 S.W. 701. We must also draw all reasonable inferences favorably to the jury verdict. Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W. 2d 307. We cannot reverse the judgment on this ground unless, after giving legitimate presumption in favor of the jury verdict, there is no reasonable probability in favor of appellees’ version. McWilliams v. R. & T. Transport, 245 Ark. 882, 435 S.W. 2d 98. We are unable to make this determination. Even if we should say that the evidence was insufficient to show an express contract, we cannot say that there was no substantial evidence to show an implied contract.

We should mention that, while we do not think the parole evidence rule should apply if full credit is given to Paul Busby’s testimony, which tends to show that the rent note was only evidence of the debt for the balance of the rent, and not the entire contract between the parties, the rule was first invoked on appeal, so we do not consider its application on appellate review.

The judgment is affirmed.

Stroud and Mays, II., not participating.


text:
    Michael Eugene TITUS v. STATE of Arkansas
    CR 79-140
    593 S.W. 2d 164
    Supreme Court of Arkansas
    Opinion delivered February 4, 1980

      John M. Bynum, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Appellant Titus was charged with capital murder and found guilty of first degree murder by a jury and sentenced to life imprisonment. He seeks reversal and argues the following points:

I
THE COURT PREJUDICED THE APPELLANT BY REFUSING TO ALLOW A LAY DEFENSE WITNESS TO GIVE HIS OPINION AS TO TITUS’ MENTAL CONDITION.
II
THE COURT PREJUDICED TITUS BY ADMITTING THREE CONFESSIONS INTO EVIDENCE.
Ill
THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION FOR FIRST DEGREE MURDER
IV
THE COURT PREJUDICED TITUS BY ADMITTING INTO EVIDENCE A SHELL CASING AND A LEAD FRAGMENT (STATE’S EXHIBIT FIFTEEN) ON THE GROUND THAT THE STATE FAILED TO PROVE AN UNBROKEN CHAIN OF CUSTODY OF THIS EVIDENCE.

We find no merit in these points and no reversible error.

Titus was accused of killing his aunt, Leota Snyder, at the home of another aunt, Helen Foster, with whom both Titus and Mrs. Snyder lived. Mrs. Snyder was killed at about noon on March 21, 1978. Her body was found on the floor near the kitchen with her head covered by a towel. She had received two head wounds. The fatal shot penetrated her face and brain. Titus was arrested in Moline, Illinois on March 22, in possession of Mrs. Snyder’s automobile, a shotgun, some shells and a small amount of money. After having been advised of his rights by Illinois officers who arrested him, he confessed that he had shot Mrs. Snyder with a .22 caliber rifle. Titus waived extradition and was returned to Arkansas by Sheriff Larry Darter of Pope County and Lt. Finis Duvall of the Arkansas State Police. En route, Titus made another incriminating statement, after he had again been advised of his rights.

I

Titus offered evidence of impaired mental condition in mitigation of punishment. Gary Martin, a lay witness, who testified during the guilt phase of the trial, was asked if he had any feeling as to whether Titus might have had some mental problems. When the state’s objection was sustained, appellant’s attorney stated that the evidence was offered in mitigation. Appellant relies upon Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rule 701, governing opinion evidence of lay witnesses and Ark. Stat. Ann. § 41-1301 (4) (Repl. 1977). Martin had testified, prior to the objection, that Titus was a very quiet person who had few friends, who kept to himself, did not seek trouble and avoided confrontations. After the objection was made, Martin testified that Titus was a loner, who would withdraw from society, even to the extent of failing to answer his telephone, who caused no problems with anyone else and who did not want any contact with the public at all.

Even though the court may have been in error in his position that a medical opinion was called for, the court’s ruling was on the basis of the particular question asked. No proffer of the testimony was made. There was expert opinion evidence that Titus had a personality disorder which was a mental disease or defect which impaired his ability to conform his conduct to the requirements of law. Since the trial had not reached the sentencing stage on the original charge of capital murder, there was no reason for presenting evidence of this mitigating circumstance. The purpose for which this opinion testimony was offered is clearly shown by reference to the closing argument on behalf of appellant. There appellant’s attorney stated that the mitigating evidence offered, including that of Martin, was not relevant to the question of guilt or innocence and was not offered for that purpose. There was never a suggestion that the evidence was offered for any other purpose than mitigation. After the verdict of guilt of first degree murder was returned, the jury was instructed as to the sentence to be imposed. No proffer of Martin’s opinion, whatever it may have been, was made at that time.

Under the Arkansas Uniform Rules of Evidence, error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected. Ark. Stat. Ann. § 28-1001, Rule 103(a) (Repl. 1979). Even though the strict rules of evidence would not have governed in the sentencing phase of the trial, had appellant been found guilty of capital murder, any error in the court’s ruling was harmless, since the jury’s verdict found Titus guilty of the lesser offense, since no proffer of the testimony Martin would have given in response to the particular question asked about his “feelings” as to whether or not [Titus] might have had some mental problems was ever made, and since the question asked called for speculation.

II

Titus moved to suppress three confessions or incriminating statements. A pretrial Denno hearing has held and the statements were determined to be voluntary. We make an independent determination of voluntariness, but do not reverse the trial court’s findings unless they are clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515.

Appellant first contends that his initial statement was coerced because it was made shortly after he was arrested by officers Fisher and Gerchen at gunpoint, placed on the ground and handcuffed. He also contends that he had a mental disease or defect and that no evidence was presented to rebut testimony to that effect. Fisher and Gerchen were investigators for the Rock Island County, Illinois, Sheriffs office. These officers had received information that Arkansas officers were searching for a suspected murderer named Michael Titus, who was believed to be on his way to the Rock Island area. They had been given a description and a photograph of Titus. At about 10:30 a.m., they saw Titus driving into the parking lot at a Holiday Inn. As he started to get out of the automobile he was driving, they pulled alongside it in their vehicle, drew their guns and placed Titus under arrest. Fisher pointed his .38 caliber pistol at Titus’s face from a distance of four or five feet. With their weapons still drawn, the officers directed him to lie down on the ground in front of the car in which he had been. Fisher then returned his weapon to its holster, “frisked” Titus and handcuffed him, while Gerchen stood by with his weapon still drawn. No physical force was used, except that required for putting handcuffs on Titus. After Titus was handcuffed, Gerchen put his weapon away. Gerchen then read a statement of constitutional rights to Titus. Fisher took a shotgun from the automobile Titus had been driving. Fisher made an inventory of the contents of this car. In addition to the shotgun he removed, Fisher found a box of shotgun shells, some packages, a Timex watch, two tapes and a registration certificate. Fisher then questioned Titus and ascertained his identity. He then asked Titus whether the shotgun was the murder weapon and Titus replied that it was not and that he had “shot her with a rifle.” When asked about stains on his clothing, Titus said that they were blood stains from the woman whom he had killed.

About 20 minutes after his arrest, Titus was taken to the Rock Island County Sheriffs office, six or seven miles away, where his clothing and personal property were taken from him and he was dressed in a jail uniform. He was again advised of his rights from a standard form, which Titus was asked to read along with Fisher. After Titus had read the statement of each of his rights, Fisher asked Titus if he understood and asked him to place his initials opposite that statement if he understood. Titus “initialled” each statement. Titus signed a waiver of rights after Fisher had again asked Titus to give his name and ascertained that Titus had a twelfth grade education, caused Titus to read the first two lines of the waiver form aloud, and received a response from Titus that he understood it. Titus then gave a statement in response to questions by Fisher, which amounted to a confession. This oral statement was tape recorded and then transcribed after which Titus signed it. The statement commenced at 11:35 a.m.

According to the officers, Titus was calm at all times and never gave the appearance of being nervous, excited or emotional. Titus did not, at any time, indicate that he did not wish to respond to questions or that he wanted an attorney. He failed to respond to four questions, but did not indicate that he wished to remain silent. Titus never indicated ( that he did not understand any question. Titus was never threatened or struck.

Appellant offered no rebuttal of the testimony of officers Fisher and Gerchen, even though his attorney stated, after the state’s evidence on the motion to suppress these statements had been concluded, that he had discussed the matter with Titus and offered him the opportunity to testify. The trial judge advised him that he had the privilege of testifying, but could not be compelled to do so. Titus then declined to testify. Even though appellant was specifically offered the opportunity to offer other evidence, he did not, so the testimony of the police officers must be taken as undisputed. No argument was advanced that the statement was not voluntary because of any mental infirmity. The only contention made by appellant at that time was that the statements made to officers Fisher and Gerchen were involuntary because appellant’s first admissions were made shortly after he had been held at the point of a gun.

Another statement, which also amounted to a confession, was made to Finis Duvall, a criminal investigator with the Arkansas State Police and Sheriff Larry Darter of Pope County, who returned Titus to Arkansas from Illinois. Again, the motion to suppress was heard only upon the testimony of the officers and the court’s ruling was made after Titus had been given the opportunity to testify and had declined, after an offer by his attorney and a repeated explanation of his rights by the trial judge. The only basis of the objection to this statement was that it was “tied up” with the two previous statements given to the Illinois officers.

Duvall testified that he had talked to Titus on March 24 while they, with Darter, were en route from Harrison to Russellville. Duvall said that, after he had received an affirmative answer to his inquiry whether Titus had been advised of his rights, he again advised Titus of his rights and Titus said that he understood, but did not sign a waiver, because Titus said he had already signed one. Titus then made a statement, which Duvall reduced to writing in narrative form and Titus signed after having read it and having had it read to him by Duvall. Duvall said that he had gone over the “Miranda” warnings with Titus in detail, that Titus said he understood and acted as if he did, that Titus said that he understood the statement after having read it and before signing it and that there were no weapons in sight when the statement was given. Darter corroborated the testimony of Duvall and stated that neither he nor Duvall beat, threatened or coerced Titus in order to obtain the statement. No other testimony was offered.

In order to reverse the holding of the circuit judge on these motions to suppress, we should have to say that every incriminating statement made by one arrested by police officers, who, suspecting that he might be armed, used weapons to effect the arrest, should be excluded. The exclusionary rule was never intended to be absolute or to have such a ridiculously extreme effect. It was intended to deter illegal police activities and nothing else. Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979). To give it the effect appellant desires would make it an absurdity.

We do not consider appellant’s argument pertaining to his allegedly impaired mental condition in connection with these statements, because it is raised for the first time on appeal. No evidence on that issue was offered at the suppression hearing and no motion was made to strike the statements after the testimony tending to show that Titus had some mental defect was offered. It is true that we review the entire record on the question of voluntariness of an incriminating statement, but we consider testimony offered after a Denno hearing only when the point has been properly raised in the trial court. Hignite v. State, 265 Ark. 866, 581 S.W. 2d 552 (1979).

III

Appellant argues that the evidence was insufficient to support a conviction of first degree murder because there was no substantial evidence of premeditation or deliberation. He asserts that there was no evidence that the crime was committed under circumstances manifesting extreme indifference to the value of human life and in the course of, and in furtherance of, or in immediate flight from, a felony.

We do not agree with appellant that there was no evidence that the homicide was committed either in the course of a felony, i.e., robbery or larceny, or in immediate flight therefrom.

Viewing it in the light most favorable to the state, as we must, the evidence shows:

Mrs. Helen Foster returned to her home at about 3:20 p.m. and found the body of her sister-in-law, Mrs. Leota Synder, who resided in the Foster residence, on the kitchen floor. When Mrs. Foster called for help from her nephew, Titus, she discovered that he was gone. When police officers arrived a few minutes later, it was discovered that Mrs. Snyder’s head was bloody and there was a hole under her right eye. A .22 caliber rifle, which was one of three weapons Mrs. Foster kept at the house, was found standing in a corner in the kitchen. Two .22 caliber hulls or casings and a lead fragment were found near the body. An autopsy revealed that the cause of Mrs. Snyder’s death was a bullet which had entered the right side of her face, penetrated her brain and become lodged inside her cranial cavity. There was another superficial skull wound to the back of the left side of her head. The pathologist who performed the autopsy expressed the opinion that the shots causing the wounds were fired from a range of four or five feet. Ballistics tests revealed that the casings found had been fired from the rifle found in the kitchen. The bullet, even though badly mutilated, had the same class characteristics or groove markings as the rifle. The time of Mrs. Snyder’s death was estimated to have been between 12:00 noon and 2:00 p.m. on March 21, 1979. Mrs. Fisher found that a shotgun she owned and Mrs. Snyder’s car were missing. When Titus was arrested, he was in possession of both.

Appellant also contends that the trial court erred by admitting a shell casing and a lead fragment into evidence because neither was identified by Mrs. Foster. Mrs. Foster testified that she found a .22 caliber cartridge on the floor after she had found Mrs. Snyder’s body. She testified that she laid the cartridge on the kitchen counter, and later gave it to one of the officers. Officer Caldwell testified that, when he arrived at the scene, Mrs. Foster showed him the hull of casing she had placed on the counter. He said that, on the next day when he went to further check the crime scene, another casing was found under an end table and a lead fragment Mrs. Foster had found between a chair and the table was given to him, and that he had retained both casings in his possession until they were taken to the State Crime Laboratory. Capt. McDonald testified that he had received a mutilated lead fragment of a bullet and an expended .22 caliber Western Super “X” cartridge casing from Caldwell on April 3, 1978. These were identified by Caldwell as the casing he had recovered from the Foster residence and the fragment he had received from Mrs. Foster. McDonald still had these in his possession when he testified. Deputy Sheriff Sears, to whom McDonald returned some of the exhibits, said that he had never seen the fragment.

Appellant’s objection at the trial was simply that the chain of custody of these two items was not shown beyond a reasonable doubt; it did not specifically point out that these items had not been identified by Mrs. Foster. We do not consider the failure of the state to ask Mrs. Foster to identify the items to be fatal to the chain of custody. Her testimony and that of Caldwell on the subject were sufficient showing that the cartridge casing was the same as that Mrs. Foster found. Even though Sears did not recall the lead fragment, McDonald’s testimony related to a lead fragment he received from Caldwell, so we do not see how Titus was prejudiced by its introduction. The question of admissibility was for the trial judge and we will not reverse his decision because we cannot say that any substantial right of appellant was prejudiced, and because appellant did not specifically point out the defect in the chain on which he now relies. Ark. Stat. Ann. § 28-1001, Rules 103(a) and 104 (Repl. 1979).

We have reviewed the record for objections and motions made by appellant which were overruled or denied and find no error prejudicial to Titus.

The judgment is affirmed.

Stroud and Mays, JJ., not participating.