author: Donald L. Corbin, Justice. David Newbern, Justice,

text:
    Neal HALL v. STATE of Arkansas
    CR 90-297
    812 S.W.2d 688
    Supreme Court of Arkansas
    Opinion delivered July 15, 1991

      Gibbons Law Firm, P.A., by: David L. Gibbons, for appellant.

      Winston Bryant, Att’y Gen., Sandy Moll, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Neal Hall, was tried and convicted by a Pope County jury for the rape and kidnapping of an eleven-year-old girl. He was sentenced to forty years imprisonment for the rape charge and five years for the kidnapping charge; the sentences were to run concurrently. Appellant appeals the denial of his motion for new trial. We affirm.

The evidence presented at trial reveals that at approximately 8:00 or 8:30 on the morning of October 18, 1989, appellant kidnapped his eleven-year-old victim as she was walking to school. He flashed a gun at her, represented himself to be an undercover policeman, and told her to get in his car. He then took her into a wooded area, undressed her, blindfolded her, and raped her vaginally, anally and orally.

This evidence was presented through the testimony of the victim herself. The victim’s testimony was in complete accord with numerous other witnesses. Dr. Kingsley Bost, the pediatrician who examined the victim, testified she had been vaginally, anally and orally raped. Mike Modika, a school bus driver, testified that on the morning of October 18, 1989, he saw a girl who looked a lot like the victim get into a white car. Modika identified a photograph of appellant’s car as the car he saw the girl enter. Two other witnesses testified that on the morning of October 18,1989, they saw a white car pulled off the road in an area near the rape scene. Both of these witnessed identified photographs of appellant’s car as the car they saw. Still another witness testified that on October 18,1989, he picked up the victim on the roadside; she was terrified and crying. Yet another witness, Gladys Franklin, testified that she was a passenger on the bus driven by Modika. Franklin stated she knew both appellant and the victim and that she saw the victim enter appellant’s car on the morning of October 18, 1989. She also testified that she saw appellant’s car leave after the victim entered it.

As the single point presented in this appeal, appellant asserts the trial court erred in denying his motion for a new trial based upon the prosecutor’s failure to comply with the discovery request to notify appellant’s counsel of the felony convictions of material witnesses. Specifically, appellant argues the prosecutor should have notified counsel of the May 30, 1990 arson conviction of Gladys Franklin. Appellant alleges the prosecutor’s failure to disclose requested information precluded him from attacking Franklin’s credibility.

Appellant’s trial occurred on July 23 and 24, 1990. On February 5, 1990, appellant filed a “Request For Disclosure” specifically requesting “prior criminal convictions or charges or allegations of misconduct against persons whom the prosecuting attorney intends to call as witnesses____” The state responded to the request on February 20, 1990, listing Franklin as a witness, but failing to list any charges or convictions. The state’s response also stated that the response would be amended upon the finding of other witnesses or information. Although there was further written communication between the prosecutor and appellant’s counsel regarding discovery, no mention of Franklin’s guilty plea and sentence of ten years probation entered May 30, 1990, was made.

After trial and upon discovery of Franklin’s conviction, appellant moved for a new trial stating that the prosecutor’s failure to disclose the information prejudiced him in that he was precluded from impeaching Franklin’s testimony with the arson conviction. At a hearing on the motion, the trial court noted the state’s failure to comply with the request was not intentional, but an oversight. Not convinced that evidence of Franklin’s prior conviction would have made any difference in the trial, the trial court denied appellant’s motion.

Ark. R. Crim. P. 17.1(a) states in pertinent part:

(a) Subject to the provisions of rule 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request, the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:
(vi) any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial, if the prosecuting attorney has such information.

We have previously held that reversible error exists when a prosecutor in fact fails to comply with an appellant’s timely request for discovery information which results in prejudice to the appellant. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

There can be no doubt as evidenced in the foregoing discussion, that appellant filed a timely request for the information in question and that the state in fact failed to provide the requested information due to an oversight. Although we have previously considered a prosecutor’s intent in deciding whether there was a discovery violation, Lasley v. State, 274 Ark. 352, 625 S.W.2d 466 (1981), such intent or lack thereof is no longer relevant. See Yates v. State, 303 Ark. 79, 794 S.W.2d 133 (1990).

The key issue then is whether appellant was prejudiced by the prosecutor’s failure to disclose the requested information; absent a showing of prejudice, we will not reverse. Caldwell v. State, 295 Ark. 149, 747 S.W.2d 99 (1988). We hold appellant has not met his burden of showing prejudice. First, as noted by the trial court, given our lack of knowledge of whether the facts relating to Franklin’s arson conviction concern her truthfulness, we can only speculate that appellant’s counsel would have been allowed to impeach her credibility with this information. Second, the evidence of appellant’s guilt is overwhelming even absent Franklin’s testimony.

Excluding Franklin’s testimony, the overwhelming evidence against appellant consists of the testimonies of the witnesses, which are related at the beginning of this opinion and the victim’s testimony,which is corroborated by other evidence. When taken together, the testimonies of these other witnesses place both the victim and appellant’s car near the rape scene at the same time the day the rape occurred. The victim gave an extremely detailed account about her rapist and the circumstances surrounding the crime. Both in a photographic line-up and at trial, she identified appellant as her rapist and kidnapper. The reliability of her identification of appellant is strengthened by the numerous facts to which she testified and which were corroborated by other evidence.

The facts to which the victim testified and the other evidence which corroborates her testimony follow. The victim testified that while she was walking to school, a man wearing a jean jacket, bluejeans, black boots, and blue hat pulled beside her in a car and showed her a gun. She later identified a B-B pistol taken from appellant’s apartment as the gun she saw in the car. She testified that a hat taken from the dumpster in front of appellant’s apartment looked familiar to her. She also identified a picture of the boots taken from appellant’s apartment as the ones her rapist wore. The victim testified her assailant smoked Winston cigarettes; Winston cigarettes were found at appellant’s apartment. She stated her attacker had shoulder-length hair that was dirty blond. Appellant admitted his hair was long, but that he cut it when he learned he was a rape suspect. Hair clippings were found in appellant’s bathroom. The victim testified the car she was kidnapped in was white with a blue interior and that she heard tools or cans rattling in the back of the car. She later identified photographs of appellant’s car as the one in which she was kidnapped. The truck of appellant’s car was filled with aluminum cans.

It is true that the record indicates the jury deliberated for quite some time before reaching a verdict. Appellant contends this indicates the jury had difficulty in reaching a verdict. This contention is purely speculation on his part and it does not mean the jury would have reached a different verdict had Franklin’s testimony been impeached. It simply means the jury deliberated for a while; we can only speculate as to the reason. They could have had difficulty in recommending sentencing provisions.

In holding that appellant has not met his burden of showing he was prejudiced by the prosecutor’s failure to disclose the requested information, we in no way intimate approval of the prosecutor’s actions in this case. Whatever the reason, whether it be intentional or oversight, a prosecutor’s failure to disclose discoverable information to a criminal defendant is an action which should be avoided. In this case, there was no prejudice resulting from the prosecutor’s negligence; it is this absence of prejudice that forms the basis of our decision.

The decision to grant a new trial in a criminal case is left to the sound discretion of the trial judge and will not be reversed in the absence of an abuse of discretion or manifest prejudice. Allen v. State, 297 Ark. 155, 760 S.W.2d 69 (1988); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). As there was a plethora of evidence other than Franklin’s testimony to support a determination of guilt, we cannot say there was an abuse of discretion and appellant has not demonstrated any prejudice. Thus, the denial of the motion for new trial is affirmed.

Affirmed.

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

David Newbern, Justice,

dissenting. So long as the evidence against an accused is “overwhelming,” a prosecutor, acting in the name of the State of Arkansas, can do anything in the course of obtaining a conviction! That is the essence of the majority opinion.

“Whatever the reason, whether it be intentional or oversight, a prosecutor’s failure to disclose discoverable information to a criminal defendant is an action which should be avoided.” (Emphasis added.) Compare that language quoted from the majority opinion with this language from Ark. R. Crim. P. 17.1, to which I have also added emphasis:

RULE 17.1. Prosecuting Attorney’s Obligations.
(a) Subject to the provision of Rules 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:
***
(vi) any record of prior criminal convictions of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial, if the prosecuting attorney has such information.

The majority opinion thus begins by altering the terms of the Rule from mandatory to discretionary. It then says we and the trial court may forget the Rule as long as the evidence of guilt is overwhelming.

On February 2,1990, Hall’s counsel filed a discovery request seeking “[a]ny record of prior criminal convictions or charges or allegations of misconduct against persons whom the prosecuting attorney intends to call as witnesses at the hearing or at trial. . . .” On February 20, the prosecutor responded, listing Gladys Franklin as a witness. In April, 1990, Gladys Franklin was charged with arson. On May 30,1990, Franklin pleaded guilty to arson, was fined $500 and put on probation with the prosecutor in attendance. On July 11, 1990, the prosecutor updated his response to the discovery request with the name of an additional witness and a number of physical items he intended to present at the trial. No mention was made of the fact that Ms. Franklin had been convicted of a crime.

Gladys Franklin was a key witness against Hall. If the jury had had doubts about the testimony of the victim, Ms. Franklin’s testimony would have been the only testimony directly identifying Hall as having been with the victim on the day the crime occurred.

As the majority opinion points out, the jury took considerable time in reaching its decision. The jurors might well have had some doubts. Experts testified that no latent fingerprints in Hall’s car matched those of the victim, and pubic hairs found on the victim were not similar to Hall’s! Of course, no one can say, in the words of the majority opinion, “the jury would have reached a different verdict had Franklin’s testimony been impeached.” If the accused has to prove that to get a reversal for violation of a rule, then the rule might as well not exist.

Had Hall’s counsel been apprised of the fact that Franklin had been charged with arson in the same judicial district in which this trial was taking place, his cross-examination of her could have all but nullified her testimony in the eyes of the jurors who, obviously struggled with the evidence as it was. Was it “prejudicial” for Hall’s counsel not to have had that information? Yes, without a doubt.

In Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), we opined that overwhelming evidence of guilt may be considered along with allegations of error, and we held that, “No longer is it presumed that simply because an error is committed it is prejudicial error.” In Johnson v. State, 303 Ark. 313, 796 S.W.2d 342 (1990), we overlooked error largely on the basis of inconsistent positions taken by Johnson’s brief with respect to that error. In Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988), we wrote we would not “count” the error of failure of the prosecution to make a tape recording of Mitchell’s confession available to him, noting the “overwhelming evidence of guilt,” but we emphasized the “good faith” of the police officers who had erased the tape so that it could be reused. With respect to an error in selecting the jury in that case, we said we were able to overlook a “technical” default where the evidence of guilt was overwhelming, the error was harmless, and thus the accused was not prejudiced by the mistake. We could not find evidence that the jury treated Mitchell in any way that was prejudicial to him. In this case, to the contrary, it is unquestionable that there was prejudice toward Hall, and the prejudice was unfair although the trial court concluded it was the result of an “oversight.”

The facts of this case show that a heinous and revolting crime was committed. I cannot, however, condone the conclusion that we can overlook the serious violation of Hall’s rights because of the nature of the crime or solely because the evidence against him was strong or even “overwhelming.” Any defendant is entitled to fair treatment as it is spelled out in our Rules, regardless of the strength of the evidence against him or her.

If we begin to disregard our explicit Rules which we purport to establish to protect the rights of individuals, the erosion of personal liberties will escalate. We will no longer be able to claim with any degree of honesty to be a “government of laws.” Hall should be given a new trial in which his rights are respected regardless of the nature of the crime with which he is charged and regardless of the strength of the evidence against him. That will be a small price to pay for the liberties we enjoy as a result of fairness in the courtroom.

I respectfully dissent.

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


source: Caselaw Access Project

author: Donald L. Corbin, Justice. Tom Glaze, Justice,

license: Public Domain

text:
    RLI INSURANCE COMPANY v. Jackie Sue COE
    90-331
    813 S.W.2d 783
    Supreme Court of Arkansas
    Opinion delivered July 15, 1991
    [Rehearing denied September 9, 1991.]

      Hubbard, Patton, Peek, Haltom & Roberts, by: William G. Bullock and John B. Greer, for appellant.

      Nicholas H. Patton, for appellee.

       Brown, J., not participating.

   Donald L. Corbin, Justice.

Appellant, RLI Insurance Company, seeks to set aside an $8,002,178.15 judgment entered August 11, 1989, in the Circuit Court of LaFayette County in favor of appellee, Jackie Sue Coe. Appealing from the trial court’s denial of its Motion for Relief from Judgment and its Motion for New T rial, appellant makes four assignments of error. We find no merit in any of the arguments presented and affirm.

On December 12,1987, Brad Beaty, appellee, and two other passengers were traveling from Taylor, Arkansas, to Lewisville, Arkansas, in Beaty’s truck. It was an hour and a half before appellee’s wedding was to take place and the four were on their way to the church where the ceremony was to be performed. Beaty was driving. The truck crossed the center line and hit a bridge, injuring the three passengers. On April 1,1988, appellee and the two other passengers filed suit against Beaty in the Circuit Court of Lafayette County, alleging the wreck was caused by his negligent acts and omissions. Beaty and one of the passengers were Oklahoma residents. Appellee and the other passenger, her sister, were both Arkansas residents. Appellee alleged she suffered damages for past and future medical expenses, past and future pain, suffering and mental anguish, past and future loss of earnings, and disfigurement, in the amount of $725,000.00.

Brad Beaty was covered by a policy of liability insurance issued by Farmers Insurance Company, Inc., (hereinafter referred to as “Farmers”) and having limits of $250,000.00 per person. He was also a named insured on a separate policy issued by appellant to William R. Beaty, his father, which provided “umbrella” coverage for up to an additional one million dollars.

Farmers, as primary carrier, employed G. William Lavender to defend the suit. Appellant was notified of the suit and made an agreement with Farmers that Lavender would forward to it copies of all pleadings and correspondence relating to the loss. On August 15, 1988, appellant forwarded a “reservation of rights” letter to William R. Beaty. On January 20,1989, appellant filed suit in Oklahoma against William R. Beaty, seeking a declaratory judgment that it was entitled to rescind the policy for material misreprentations made in the application.

Lavender forwarded all correspondence relevant to the case to appellant until he determined that no answer was going to be filed to the declaratory judgment action against William R. Beaty. He then notified Farmers that due to a conflict of interest he would no longer be able to communicate with appellant. The last correspondence forwarded by Lavender to appellant was dated January 31, 1989.

On March 23, 1989, a trial was held at which evidence and testimony were received by the court. On April 20, 1989, a judgment was filed along with findings of fact and conclusions of law. Following an August 10, 1989 Motion for Entry of Final Judgment filed by appellee, the court, pursuant to Ark. R. Civ. P. 54, entered such a judgment. It was filed August 11, 1989.

On August 25, 1989, appellant filed a Motion to Intervene for the limited purpose of filing a Motion for Relief from Judgement and for New Trial; the same day it filed the Motion for Relief from Judgment and for New Trial. On November 3,1989, appellant filed a Supplemental Motion to Intervene and a Supplemental Motion for Relief from Judgment. On November 6, 1989, following a hearing at which appellant presented testimony and evidence in support of its motions, the trial court entered an order allowing appellant to intervene, denying appellant’s Motion for Relief from Judgment, and making various factual and legal findings in support of its rulings. It is from the adverse rulings included in the November 6, 1989 order this appeal comes.

I.

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR RELIEF FROM JUDGMENT BECAUSE THE PROCEEDINGS UPON WHICH JUDGMENT WERE HAD DENIED APPELLANT DUE PROCESS OF LAW.

Appellant cites the Fourteenth Amendment to the United States Constitution and Davis v. University of Arkansas Medical Center and Collection Serv., Inc., 262 Ark. 587, 559 S.W.2d 159 (1977), in support of this argument. In Davis this court, when considering a due process issue, quoted the following language from Goss v. Lopez, 419 U.S. 565 (1975):

There are certain bench marks to guide us, however, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), a case often invoked by later opinions, said that ‘[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’

Davis, 262 Ark. at 589, 559 S.W.2d at 161.

Appellant asserts that from the Mullane language it can be seen that in the context of civil litigation in the state courts of Arkansas, due process of law requires prior notice of the adjudication and prior opportunity for hearing, both being appropriate to the nature of the case. Appellant contends that, in light of the nature of this case, neither the required notice nor the required hearing was afforded.

Appellant argues that at the time of the March 23, 1989 hearing, it was “the only party having an interest adverse to Jackie Sue Coe” and as it had no notice of the hearing, it was denied due process of law. Appellant relies on Ideal Mutual Ins. Co. v. McMillian, 275 Ark. 418, 631 S.W.2d 274 (1982), in making this argument. In that case, Ideal Mutual Insurance Company insured an airplane that crashed, killing the pilot and injuring McMillian, the passenger. After the pilot’s estate was closed, a negligence action was filed by McMillian against the estate of the pilot. A statute of nonclaims barred any action except to the extent that liability insurance was available. The county sheriff was appointed special administrator. He attempted to give notice of the suit to Ideal Mutual Insurance Company by mailing letters to both the attorney for the owner of the plane and Ideal Mutuel’s issuing agent. The attorney received the letter addressed to him. However, the letter addressed to the issuing agent was incorrectly addressed and the issuing agent denied ever receiving it. The trial court found the notice to the insurance company was sufficient and, as the complaint was never answered, entered a default judgment against the estate of the pilot. After learning of the default judgment, the insurance company filed a Motion to Intervene under Ark. R. Civ. P. 24(a). The motion was denied. It then filed a Motion to Set Aside the Default Judgment alleging insufficient notice of the proceeding. The trial court denied that motion also. On appeal, this court reversed and remanded finding that under the statute, although the estate was the named defendant, the insurance company was the only party financially interested in the outcome of the case and pursuant to Ark. R. Civ. P. 24(a) could have intervened as a matter of right. We held that because the insurance company did not receive notice of the suit, the Motion to Set Aside the Default Judgment should be granted and the insurance company should be allowed to intervene.

In Ideal Mutual, the insurance company was not ' given notice the action had been filed. In the case at bar, appellant admittedly knew of the pending action; it complains of not receiving notice of the March 23, 1989 trial, what it refers to as “the adjudication.” Although appellant had a financial interest in the outcome of the case, and may not have been given notice the case had been set for trial, it had notice of the proceedings in that it knew the lawsuit was pending. Like the insurance company in Ideal Mutual, it also could have intervened as a matter of right, Ark. R. Civ. P. 24(a). Had it so intervened, it could have been present to protect its own interests.

Appellant received correspondence from Mr. Lavender until and even after the time it filed the declaratory judgment action in Oklahoma, by which it placed itself in a position adverse to that of Brad Beaty. Among the correspondence forwarded to appellant regarding the pending suit was a letter from appellee’s counsel to Mr. Lavender, mailed late in 1988. In the letter, appellee offered to settle the lawsuit for $1,250,000.00. Accompanying the letter was a copy of the videotape, “a day in the life of Jackie Sue Coe.”

Notice that the lawsuit is pending is the notice required to satisfy the due process requirement. See Ideal Mutual, supra. Appellant had not only notice the lawsuit was pending, but also notice the primary coverage would probably be exhausted.

II.

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT’S MOTION FOR RELIEF FROM JUDGMENT BECAUSE THE RELIEF REQUESTED WAS NECESSARY TO PREVENT THE MISCARRIAGE OF JUSTICE.

Ark. R. Civ. P. 60, Relief from Judgment, Decree or Order, states in part:

(b) Ninety-Day Limitation. To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk.

Appellant maintains that at the March 23, 1989 hearing there was no justiciable controversy between the parties before the court and, thus, the machinery of the court system was used as an instrumentality for later extortion against a non-party. It maintains that such extortion was the object of the trial is obvious from the following: the parties acquiesced in the entry of a judgment for more than ten times the damages pleaded; appellant was not notified of the entry of the judgment at the time it was entered; and almost exactly thirty days after entry of the judgment, appellee sued appellant for over eight million dollars on the basis of an assignment of rights she received from Brad Beaty. Appellant claims these events resulted in a miscarriage of justice which should have been prevented by the trial court’s granting it relief pursuant to Rule 60.

The only limitation on the exercise of the power to set aside the judgment pursuant to Rule 60 is addressed to the sound discretion of the court. Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980).

Appellant maintains the trial court’s finding that it failed to make a prima facie case showing any defense to the original cause of action as required by Rule 60(d) is inapplicable. Rule 60(d) provides as follows:

(d) Valid Defense to Be Shown. No judgment against a defendant, unless it was rendered before the action stood for trial, shall be set aside under this rule unless the defendant in his motion asserts a valid defense to the action and, upon hearing, makes a prima facie showing of such defense.

Appellant contends “the action” in this case includes what were at the time the judgment was entered, the pending claims of the other two passengers, and therefore, the hearing of March 23, 1989, comprised only a part of the action. Appellant maintains that as the requirement of establishing a meritorious defense is inapplicable where the judgment from which relief is sought “was rendered before the action stood for trial” and the judgment in the case at bar was rendered before “the action stood for trial,” the requirement of a prima facie showing of a valid cause of action is inapplicable.

Appellant fails, however, to support this contention with either convincing argument or authority. As we have said many times, assignments of error which are unsupported by convincing argument or authority, will not be considered on appeal unless it is apparent without further research that they are well taken. Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989).

Alternatively, appellant contends the requirement of the establishment of a prima facie case of a meritorious defense was met. It contends that in its Supplemental Motion for Relief from Judgment it pleaded that Brad Beaty had a valid defense to the claim of appellee in that she was a participant along with Beaty in a joint enterprise within the contemplation of such Arkansas cases as Lewis v. Chitwood Motor Co., 196 Ark. 86, 115 S.W.2d 1072 (1938).

This court in Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982), defined “meritorious defense” as:'

[E]vidence (not allegations) sufficient to justify the refusal to grant a directed verdict against the party required to show the meritorious defense. In other words, it is not necessary to prove a defense, but merely present sufficient defense evidence to justify a determination of the issue by a trier of fact.

Tucker, 275 Ark. at 66, 628 S.W.2d at 283-84.

In Neal v. J.B. Hunt Transp. Inc., 305 Ark. 97, 805 S.W.2d 643 (1991), this court considered whether the trial court’s giving a jury instruction on joint enterprise was error. In Neal, both the driver of a car and the passenger brought a negligence action against a trucking company, alleging one of the company’s trucks ran them off the road. The jury found in favor of the trucking company. On appeal, the driver and passenger argued it was error to give a joint venture instruction absent a showing of some business relationship or purpose common to them both. We stated that a finding of a joint enterprise requires a showing of “an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking.” Neal, 305 Ark. at 101, 805 S.W.2d at 645. We found a basis for the joint enterprise instruction in testimony of the driver. She said she would have turned the driving back over to the passenger if he had asked. We stated that assuming the evidence is sufficient to raise an issue of negligence on the part of the driver of the vehicle and it remains the same on the matter of right to control the vehicle, the giving of an instruction on joint enterprise was not error; the essential question is whether the parties can be found by implication to have agreed to an equal voice in the management of the vehicle, and in the normal and usual case is an issue of fact for the jury.

In the case at bar, appellant asserted the defense of joint enterprise in its November 3, 1989 Supplemental Motion for Relief from Judgment. However, the record is devoid of any evidence that appellee had an equal right to direct and govern the movements and conduct of Brad Beaty “in respect to the common object and purpose of the undertaking.” Because there is no evidence to justify a determination of the issue, we cannot say the trial court abused its discretion by refusing to set aside the August 11, 1989 Final Judgment.

III.

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT’S MOTION FOR RELIEF FROM JUDGMENT BECAUSE UNCONSCIONABLE FRAUD WAS PRACTICED BY JACKIE SUE COE IN OBTAINING THE JUDGMENT.

Appellant argues that pursuant to Ark. R. Civ. P. 60(c)(4), the trial court should have set aside the judgment for fraud practiced by appellee, by and through her counsel. The relevant portion of Rule 60 provides as follows:

(c) Grounds for Setting Aside Judgment, Other Than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment.. . has been rendered or order made shall have the power, after the expiration of ninety (90) days after the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(4) For fraud practiced by the successful party in obtaining the judgment.

Appellant relies on Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845 (1987), in which we construed Rule 60 and held that “fraud” sufficient to compel the setting aside of a judgment is:

[A] breach of legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declared fraudulent because of its tendency to deceive others . . . Neither actual dishonesty of purpose nor intent to deceive is an essential element of constructive fraud.

Davis, 291 Ark. at 476, 725 S.W.2d at 847, (quoting Lane v. Rachel, 239 Ark. 400, 389 S.W.2d at 621 (1965). We note that the cases involving fraud under Ark. R. Civ. P. 60 are cases of fraud upon the court. However, the language in the definition of fraud adopted by this court simply requires a “tendency to deceive others.”

Appellant claims the breach of legal or equitable duty is patent, and the actions of appellee, by and through her counsel, evidence this breach of duty. The alleged actions of appellee upon which appellant bases its argument are: 1) hastily contriving a hearing on a case knowing appellant, the only party with an interest adverse to Coe, had not been given notice of the hearing and thus would not have opportunity to defend; 2) misrepresenting to the trial court at the commencement of the trial that there was no settlement agreement,when in fact the entire controversy between Coe, Brad Beaty, and Farmers was settled and Beaty had agreed to assign to Coe all rights he had against appellant; and 3) conspiring with Beaty to induce the trial court to enter an excessive judgment in reliance on reports and other material which were never introduced into evidence and therefore, were not a part of the record.

We cannot say any action of appellee, by and through her attorney, in any way deceived appellant. In light of the circumstances at the time, the actions of appellee’s attorney were taken in her best interest. Appellee had past medical expenses and would certainly incur substantial additional medical expenses. She was not able to pursue her career. Her interest in going forward with the lawsuit is apparent. Appellant had notice of the lawsuit and that the amount of damages sought exceeded the amount of primary coverage. We cannot say that appellee’s actions in expediting the lawsuit deceived appellant.

As for the alleged misrepresentation to the court concerning any settlement agreement, at the November 3, 1989 hearing on appellant’s motions, the court heard testimony from the attorneys involved in the March 23,1989 trial. Appellee’s attorney testified that on March 23,1989, there was an oral agreement between the parties. He said it had hot been reduced to writing and that, depending on the proceedings that day, was subject to being changed. Brad Beaty’s attorney testified the parties had “an oral agreement to be consummated in writing and subject to the approval of this clients and my client.” He continued by saying that “we had one in principle before, but, we had a binding agreement after the trial.” Both attorneys testified that the trial court was aware of the tentative agreement. We cannot say that any party by these actions practiced a fraud upon the court.

Appellant’s contention that appellee conspired with Beaty to induce the trial court to enter the judgment is without merit. Although not all the evidence was introduced into evidence to be made a part of the record, the evidence was before the court. In its Findings of Facts and Conclusions of Law, the court referred to the various items of evidence and the testimonies of the different witnesses. Under the circumstances, there was no need for appellee to establish a detailed record. We cannot say her failure to do so was part of a conspiracy to induce the court to enter an excessive judgment.

IV.

THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING APPELLANT’S MOTION FOR NEW TRIAL UNDER RULE 59(a)(1) and (a)(4) TO BE DEEMED DENIED.

On August 25,1989, appellant filed a Motion for Relief from Judgment and for New Trial. On October 24, 1989, appellant filed a Notice of Appeal and Designation of Record, by which it sought to appeal “from any effectual deemed denial by the trial court of its request for a new trial pursuant to Rule 59 of the Arkansas Rules of Civil Procedure.”

The bases of appellant’s Motion for New Trial are Ark. R. Civ. P. 59(a)(1) and (a)(4), which provide as follows:

(a) Grounds. A hew trial may be granted to all or any of the parties and on all or part of the issues on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: (1) any irregularity in the proceedings or any order of court or abuse of discretion by which the party was prevented from having a fair trial; ... (4) excessive damages appearing to have been given under the influence of passion or prejudice^]

Appellant argues that “irregularities in the proceedings” occurred in the trial court which compelled the ordering of a new trial. The alleged irregularities include both the entry of a judgment in excess of ten times the amount of damages pleaded, where said judgment was based on the obvious collusion between appellee and Brad Beaty, the named defendant, and the inducement of the trial court to enter judgment based upon matters not introduced into evidence or made a part of the record.

Appellant also contends the $8,002,178.15 judgment was excessive and appears to have been given under the influence of passion or prejudice. Appellant contends the language used in the Findings of Facts and Conclusions of Law indicates the award of damages was affected by passion. The specific language appellant refers to is the use of the word “grotesque” by the court in describing the tissue grafting on appellee’s ankle; the court’s stating that it “certainly understands the plaintiffs testimony regarding the embarrassment theses scars and disfiguring areas cause her;” and the court’s stating that it was “impressed with” the testimonies of appellee, her family, and her fiance.

On appellate review, the test of a denial of a motion for new trial is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferenees permissible under the proof. Schuster’s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987).

A review of the record reveals that the court received testimony and evidence at the March 23, 1989 trial. The parties stipulated to past medical expenses in the amount of $ 130,230.43. Also stipulated was a transcribed statement of appellee’s attending physician, Dr. Shubert of Baylor University Medical Center in Dallas, Texas. The parties also agreed that a vocational assessment report, which was being prepared by Dr. Wayne Werner, would be submitted to the court. A videotape of “a day in the life of Jackie Sue Coe” was played, followed by testimony from appellee as well as her mother, father, sister, and fiance.

Appellee testified about her past work experience and the prospects for the future concerning her job. She also told the court about the activities she enjoyed prior to the accident such as softball, water skiing, and horseback riding. She said since the accident the only outdoor recreation in which she could participate was fishing. She talked about the pain and anxiety she experienced in undergoing some twenty-five surgical procedures on her ankles. She said several more surgeries would be necessary and, according to her doctor, the possibility still existed that she might lose one of her legs. The other witnesses related their observations concerning appellee’s pain and suffering and the changes in her lifestyle since the accident.

In the Findings of Fact and Conclusions of Law filed August 11,1989, the court sated that it “further is of the opinion that the proof in this cause of action far exceeds the amount plead for and the pleadings should be deemed amended to conform to the evidence offered in this case.” Although the judgment was in excess of the amount of damages pleaded, there is substantial evidence to support the court’s entering judgment as it did. We cannot say that the alleged irregularities were such that appellant was prevented from having a fair trial. Finally, the language used by the court in its Findings of Fact and Conclusions of Law is simply descriptive and, in light of the evidence and testimony before the court, is not inappropriate. We certainly cannot infer from that language that the entry of the judgment was based on passion. Therefore, we cannot say the trial court erred in allowing appellant’s Motion for New Trial under Ark. R. Civ. P. 59(a) to be deemed denied.

Affirmed.

Hays and Glaze, JJ., concur.

Brown, J., not participating.

Tom Glaze, Justice,

concurring. I concur. For me, the difficult issue in this appeal is the due process question raised by RLI. As pointed out by the majority, RLI had notice of the pending lawsuit, but relied upon the insured’s and the primary carrier’s (Farmers Insurance’s) attorney, G. William Lavender, to keep RLI apprised as to the progress of the case. The majority opinion correctly details the facts leading to Lavender’s failure to inform RLI of the insured’s and Farmer’s settlement with the plaintiff, Jackie Coe. Nor did Lavender inform RLI of the March 23, 1989, trial that resulted in the eight million dollar judgment entered on April 20, 1989. Coe, Farmers and the insured were aware that RLI had the excess coverage in this case and therefore had a personal stake in its outcome. Nevertheless, as already noted, RLI was never notified of the March 23 trial by Coe, Farmers, Lavender or the insured, even though RLI’s excess coverage was unquestionably in jeopardy. If these were the only events that had occurred, I would question whether adequate notice had been provided RLI.

The record is not clear as to when RLI became aware of the April 20, 1989 judgment, but it is clear RLI was aware of that judgment by June 7,1989. On that date, RLI wrote the trial judge notifying him that RLI had been sued in federal court by Coe based upon certain rights she obtained under the April 20 judgment. RLI also asked the court not to take further action in the Coe lawsuit without notice being given RLI. By letter dated June 13, 1989, the judge advised RLI’s counsel that he knew of nothing pending in Coe’s portion of the lawsuit, but the other two plaintiffs’ claims would be tried in the future. He further advised that, if RLI intended to defend against those claims, RLI should enter its appearance in the proceedings.

At this point in time, RLI was fully apprised that Coe’s claim was one of three involved in the same lawsuit, that Coe’s claim had been reduced to judgment and that two parties’ claims were still pending. Coe’s judgment, however, was not a final one, as can be discerned by reading ARCP Rule 54(b), which provides as follows:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. (Emphasis added.)

Here, the trial court made no express finding in its April 20 judgment that Coe’s claim should be made final because there was no just reason for its delay. As a consequence, the trial court’s decision was subject to revision at any time prior to the other parties’ claims being adjudicated. In sum, if RLI had acted to intervene in Coe’s and the other parties’ lawsuit in June 1989, it could have timely raised the objections it later attempted to raise after August 11, 1989 — the date the trial court entered a judgment in Coe’s behalf that complied with the requisites of Rule 54. In sum, Coe’s judgment was not final until August 11th, not April 20th.

This court has emphasized that it is the duty of a litigant to keep himself informed of the progress of his case. Midwest Timber Products Co., Inc. v. Self, 230 Ark. 872, 327 S.W.2d 730 (1959); Trumbell v. Harris, 114 Ark. 493, 170 S.W. 222 (1914); Meisch v. Brady, 270 Ark. App. 652, 606 S.W.2d 112 (1980). In the present case, RLI had ample notice and opportunity to have raised and litigated the issues below that it now argues on appeal. While RLI’s grievance with Farmers and its attorney may have some merit concerning the latters’ failure to keep RLI informed as agreed, Coe owed no such duty. RLI was, in my view, entitled to procedural due process, which included notice of the pending lawsuit and an opportunity to be heard. The record reflects RLI was afforded such due process. Therefore, I join in the majority’s decision upholding Coe’s judgment.


author: Donald L. Corbin, Justice. Steele Hays, Justice,

text:
    STATE of Arkansas v. Jesse C. MARTINEZ, Jr. and Nadine C. Martinez
    CR 91-75
    811 S.W.2d 319
    Supreme Court of Arkansas
    Opinion delivered July 15, 1991

      Winston Bryant, Att’y Gen., by: Jeff Vining, Asst. Att’y Gen., for appellant.

      Jeffrey E. Levin and Ronald E. Bumpass, for appellees.
   Donald L. Corbin, Justice.

The state brings this interlocutory appeal from an order of the Johnson Circuit Court granting appellees’ pretrial motion to suppress evidence. Ark. R. Crim. P. 36.10. The sole issue presented in this appeal is whether the trial court erred in ruling the evidence seized be suppressed due to an invalid nighttime search warrant. We affirm.

In reviewing a trial court’s decision to grant a defendant’s motion to suppress evidence, we make an independent determination based on the totality of the circumstances and reverse the trial court’s decision only if it is clearly against the preponderance of the evidence. State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991).

Our review of the evidence reveals that, on four different occasions during the month prior to the July 27, 1990 arrest of both appellees, Officer Hanes of the Fifth Judicial Drug Task Force purchased marijuana from appellee Jesse Martinez at the Martinez property, which consists of both the Martinez residence and a Martinez-owned business entitled Marty’s Gun Shop. On July 26,1990, Jesse Martinez contacted Officer Hanes regarding the purchase of a quarter pound of marijuana. At this point, Officer Hanes initiated steps to obtain a search warrant. He planned to execute the above-referenced purchase and then search the Martinez property. On July 27, 1990, Officer Hanes met with Chief Deputy Dorney of the Johnson County Sheriff’s Office and Judge Len Bradley to obtain the search warrant. Officer Hanes was sworn and signed the prepared affidavit. The search warrant was then issued at approximately 6:45 p.m. Because Ark. R. Crim. P. 13.1(b) requires the application for a search warrant be supported by one or more affidavits or recorded testimony, we do not consider any unrecorded oral testimony that may or may not have been given. Thus, we only consider the information contained in the affidavit.

The affidavit was dated July 27, 1990, and recited that arrangements had been made to purchase a controlled substance from Jesse Martinez on that day. The affidavit also stated that it was believed Martinez stored the controlled substance at his residence and that the proposed sale was expected to occur there.

The state argues the search warrant issued in this case contained the appropriate language that the warrant was to be executed “at any time of the day or night” and therefore, the trial court erred in granting the motion to suppress. With this argument we cannot agree.

It is well-settled that an affidavit must set out facts showing reasonable cause to believe that circumstances exist which justify a nighttime search. State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980); Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977). Ark. R. Crim. P. 13.2(c) provides that:

(c) Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.

The affidavit in this case does not set out facts showing reasonable cause for Judge Bradley to have found that any of the three circumstances quoted above existed. The affidavit merely provides that four previous sales of marijuana had been made by Jesse Martinez to Officer Hanes, that controlled substances were believed to be stored at the Martinez residence, and that another purchase was scheduled to occur at the residence that day. The affidavit is silent with respect to anything regarding reasonable cause to believe the marijuana would be destroyed or removed before the next morning. Thus, we hold it was error for the nighttime search warrant to have been issued.

Our holding is consistent with Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990), and State v. Broadway, supra. Both Hall and Broadway have facts similar to the facts in the present case. In Hall, supra, we held that an affidavit reciting simply that illegal drugs were at appellant’s residence and that a confidential informant had purchased marijuana there within the last seventy-two hours did not state facts sufficient to support the issuance of a nighttime search warrant. The Hall case is controlling of the present case in all respects.

Although we hold the issuance of this search warrant was in violation of Ark. R. Crim. P. 13.2(c), a motion to suppress will not be granted unless the violation is “substantial.” Ark. R. Crim. P. 16.2(e). “The nighttime intrusion into a private home is the violation of an important interest, and from the record before us there is nothing to indicate that the evidence would not still have been there the next morning.” Hall, 302 Ark. at 344, 789 S.W.2d at 458. Consistent with Hall, we hold the intrusion into appellees’ home, which began at approximately 9:00 p.m. and continued through 4:00 p.m. the next day, was a substantial violation of our rules.

The state urges us to apply the good faith exception to the warrant requirements which was first enunciated in United States v. Leon, 468 U.S. 897 (1984). We have stated that we would apply this exception to violations of our state laws given the appropriate case. Hall, supra. However, as was also determined in Hall, this is not the appropriate case. See Hall, supra, 302 Ark. at 344, 789 S.W.2d at 458-59. In the case at bar, Chief Deputy Dorney testified he was somewhat familiar with our rules of criminal procedure regarding nighttime searches. There can be no doubt then that he knew the search which began at approximately 9:00 p.m. was conducted in violation of our rules. The search violated our rules in that it was conducted, almost one hour after the 8:00 p.m. time constraint, pursuant to an affidavit that did not specify any of the three conditions for issuing a nighttime warrant. Because the executing officers did indeed have knowledge of our rules, we need not address the issue of whether the issuing judicial officer remained neutral and detached and refrained from acting as a rubberstamp for the law enforcement officers. Id. Thus, we decline to apply the good faith exception to this violation of our rules of criminal procedure.

In summary, it was error to issue the nighttime search warrant. The good faith exception is not applicable to this case. Based on our review of the evidence, we cannot say the trial judge’s decision to grant the motion to suppress was against the preponderance of the evidence. Hall, supra, is a case with strikingly similar facts to this case and we are bound by that decision. Accordingly, the trial court’s suppression order is affirmed.

Holt, C.J., and Hays, J., dissent.

Steele Hays, Justice,

dissenting. It is, I believe, a mistake to

decide this case from the standpoint of whether the search warrant meets the requirements of a nighttime search. The correct approach, I suggest, is to determine whether the manner and means by which the search warrant was executed constitutes a substantial violation of our rules governing search and seizure of evidence. Ark. R. Crim. P. 16.2. It is, after all, only unreasonable searches that are offensive to the Fourth Amendment. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). In determining whether the violation was substantial we are obliged to consider all the circumstances, including the extent of deviation from lawful conduct by the officers, the extent to which the violation was willful, the importance of the particular interest violated, the extent to which privacy was invaded. Rule 16.2. When the circumstances of this case are examined, there is no basis for a conclusion that the officers acted improperly in any manner or that the search was in any sense unreasonable.

In the late morning of July 27,1990, the day the warrant was issued, appellee Jesse Martinez called Officer Hanes, acting as an undercover agent, to say “I’ve got plenty of what you want” (referring to marijuana). Hanes asked if Martinez could handle a quarter pound and Martinez said “Yeah, that would be easy.” Hanes began the steps to secure a search warrant, which was issued at 6:45 p.m., well within the 6:00 a.m. to 8:00 p.m. time frame of Ark. R. Crim. P. 13.2(c). It is evident the officers assumed the warrant would be executed during daytime hours, but when they called Martinez to arrange to come to his house, ostensibly to make the purchase, he put them off on the grounds that he had company. Martinez arranged to meet them near the Mulberry River Bridge on Highway 103, some distance from his home. By the time Martinez arrived it was 8:10 p.m. and so it was 8:48 before the officers could make the arrest and drive to Martinez’s house to begin the search. It is clear the delay was attributable not to improper conduct by the officers, but to arrangements directed by the appellee and which the officers were powerless to counter-mand without arousing his suspicions.

Thus, the issue is simply whether under all the circumstances a delay of forty-eight minutes is a “substantial violation” of Rule 13.2(c). The majority rely on Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990) and State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). But the search in Hall was executed between 1:00 a.m. and 3:00 a.m., and Broadway was the product of a sharply divided court and the majority opinion does not tell us what time the warrant was executed, only that it was a nighttime search without the required grounds. But 8:48 on a July evening is hardly the equivalent of 1:00 a.m. It is still light, and there is no evidence these appellees had retired for the evening. In short, this case more nearly resembles Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977) and James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983). In Brothers a search pursuant to a warrant began “about 8:00 p.m. and was completed as soon thereafter as possible.” This court found that not to be a material violation of Rule 13.2(c):

In this particular case the failure to strictly comply with Rule 13.2(c) was not willful, no additional invasion of privacy occurred, and appellant suffered no prejudice. Therefore, suppression was not warranted.

In James the search commenced at 7:10 p.m. but was interrupted so that the warrant could be amended, which was not reissued until 9:12 p.m. Similarly, in United States v. Koller, 559 F.Supp. 539 (E.D. of Ark. 1983), the federal district court, applying Arkansas law in the interpretation of Rule 13.2(c), denied a motion to suppress where the warrant was signed at 7:55 p.m.. and arrived at approximately 8:10 p.m. at the defendant’s home. Citing the language quoted from Brothers, supra, the district judge wrote:

Any failure to strictly comply with Rule 13.2(c) did not violate the policy of prohibiting unexpected searches in the middle of the night, was only a matter of minutes, and did not cause a surprise intrusion into defendant’s privacy. There was no substantial violation of Rule 13.2(c), of federal policy, or the Untied States Constitution.

Appellees have made no attempt to show prejudice [Pridgeon v. State, 262 Ark. 428, 559 S.W.2d 4 (1977)] or that the relatively short delay in executing this warrant created any added intrusion into their privacy, or that the delay was attributable to anything other than the instructions interposed by the appellee Jesse Martinez. It is exactly this sort of situation to which United States v. Leon, 468 U.S. 897 (1984) was intended to apply.

Holt, C.J., joins.