author: Ray Thornton, Justice.

text:
    Richard Francis BARR III v. STATE of Arkansas
    CR 98-328
    984 S.W.2d 792
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      Kenneth G. Fuchs, for appellant.

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

Appellant Richard Barr brings this appeal of his convictions for attempted capital murder, kidnapping, rape, aggravated robbery, theft of property, criminal impersonation, and fleeing, alleging several points of error by the trial court. Finding no error, we affirm appellant’s convictions and his sentence of life imprisonment.

Appellant, traveling from West Virginia with his half-brother, Alan Chauncey, met twenty-one-year-old Sally Sanders and her mother in Conway during the evening hours of February 10, 1997. Representing themselves as FBI agents, appellant and Chauncey persuaded the two women to join them for coffee, then returned with them to the apartment Sally shared with her twenty-year-old sister, Alice. Chauncey asked to come inside to use the restroom; he emerged with a gun in hand and took the three women hostage. Over the course of the evening the women were bound and stripped, and the two sisters were subjected to multiple rapes.

Leaving Barr guarding the other two women with a knife, Chauncey took Sally to an ATM and withdrew cash from the women’s bank accounts. Returning to the apartment, the sisters were made to shower, dress, and pack travel bags; they were told they would be taken to Fort Smith and released. Janie Sanders was left bound on a bed. Alice Sanders was ordered into the brothers’ white Ford Explorer with Chauncey while Sally was to ride with appellant in Alice’s Pontiac Grand Am. Chauncey stood guard over the sisters in the parking lot while appellant returned to the apartment and slit Janie Sanders’s throat.

After the gunmen left with their hostages, Janie Sanders managed to free herself and go for help. The Conway Police Department was notified to be on the lookout for a white Explorer with West Virginia tags, and officers caught sight of it headed toward the interstate. The officers in pursuit stopped the Explorer in Conway on an entrance ramp to Interstate 40, but it suddenly took off at a high rate of speed. The officers began a high speed chase after the vehicle. Sally Sanders testified that appellant joined the chase a “couple of seconds” after they accessed the interstate in Conway.

Conway police officer Benjamin Lackey testified that while chasing the Explorer westbound on 1-40, the officers were notified that a Grand Am was also involved in the crime. Shortly thereafter, Lackey spotted the Grand Am driven by appellant coming up behind them, then attempting to force the officers off the road. Officer Lackey did not recall where he was on the interstate when he first saw the Grand Am, but he did not believe he had reached Menifee, which is located on the Faulkner County - Conway County fine. From that point, Officer Lackey began chasing the Grand Am at speeds in excess of one hundred and twenty miles per hour. Appellant was finally stopped in Pottsville, in Pope county.

Barr was charged with criminal impersonation, four counts of rape (accomplice liability), one count of aggravated robbery, two counts of aggravated robbery (accomplice liability), three counts of kidnapping, two counts of theft .of property, two counts of theft of property (accomplice liability), criminal attempt to commit capital murder, theft by receiving, and fleeing. The brothers’ cases were severed for trial. The trial court granted appellant’s directed-verdict motion as to theft by receiving with regard to the Explorer, believed to be stolen. He was convicted on the remaining counts and sentenced to three life sentences plus 120 years.

Appellant brings this appeal, alleging five points of error: that the trial court erred in not admitting the psychological report of accomplice Alan Chauncey and not allowing the psychologist to testify regarding his findings; in denying appellant’s directed-verdict motions with regard to the charges of criminal impersonation and fleeing; in allowing introduction of other crimes committed by the accomplice; and in denying appellant’s motion for a mistrial during the State’s closing arguments. We address each of these points in turn.

I. Psychiatric Evidence of Chauncey

For his first assignment of error, appellant claims that the trial court should have allowed him to admit into evidence testimony of the psychiatrist who conducted Chauncey’s court-ordered mental evaluation and the State Hospital’s report of that evaluation. Appellant claims that this evidence was essential to bolster his own credibility and to support his affirmative defenses of duress and choice of evils. Specifically, appellant argued that his brother had threatened to kill him and the three women, and that he was compelled to do what his brother instructed him to do. Alan Chauncey asserted his right under Ark. R. Evid. 503 to claim the psychotherapist-patient privilege, as well as his Fifth Amendment right against self-incrimination. The trial court agreed that Chauncey’s medical records were privileged with respect to Barr’s trial, and ruled that the psychiatrist could not testify and that the report could not be introduced. With regard to the threshold question whether Chauncey’s medical records were relevant to Barr’s claimed affirmative defenses, there was no showing that appellant was aware of Chauncey’s disorder, or that it influenced his actions. After the court disallowed the evidence, appellant proffered both the doctor’s testimony and the report for the record.

Rule 503 provides:

(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.

Ark. R. Evid. 503.

Appellant agrees in his brief that the psychological evaluation was completed to determine Chauncey’s fitness to proceed. The rule clearly provides that communications made to a psychotherapist are privileged except with respect to the purpose for which the examination was ordered, unless ordered otherwise by the court. Ark. R. Evid. 503(d)(2). Here, the communications were made for the purpose of determining Alan Chauncey’s competency, not for the purpose of supporting appellant’s affirmative defense. Alan Chauncey’s assertion of his privilege to refuse to disclose, and to prevent others from disclosing, his confidential communications made for the purpose of diagnosis or treatment is fundamental, and appellant cites no authority and makes no persuasive argument that the court’s ruling was in error. In the words of Justice George Rose Smith, we are being asked in effect to research the law and to hold in favor of the appellant if the research of our labor so demands. We must decline that invitation. Assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 862, 545 S.W.2d 606, 609 (1977).

Appellant asserts that no privilege exists where the communications have already been provided to third persons, i.e. the trial judge, prosecutor, and appellant’s attorney. However, no privilege exists for a court-ordered evaluation “with respect to the particular purpose for which the examination is ordered.” Ark. R. Evid. 503(d)(2). As such, this court-ordered report was necessary material for the trial court and the prosecutors, as well as Chauncey’s attorney in the proceeding against Chauncey. Notwithstanding that appellant’s attorney had obtained a copy of the report, the claim of privilege is not defeated by a disclosure which was inadvertently made.

Appellant asserts that, pursuant to Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982), the privilege is inapplicable here because the rule applies to “communications,” not simply any information. Appellant does not specify what portions of the testimony or the report should have been admitted, or explain why they amount to information, not “communications.” Nonetheless, appellant’s reliance upon Baker is misplaced because there the issue concerned the introduction of certain portions of Baker’s medical records at her own trial.

Moreover, the basic question of the admissibility of evidence is relevancy. Relevant evidence is admissible; evidence which is not relevant is not admissible. Ark. R. Evid. 402. “Relevant evidence” is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401.

The evidence which appellant sought to introduce concerned Chauncey’s diagnosis of multiple personality disorder, and appellant argues that this condition supports his affirmative defense of duress or the choice of evils. Appellant asserts that if he had not followed his brother’s orders, Chauncey would have killed the women and appellant. However, appellant makes no argument and offers no citations in support of the relevancy of Chauncey’s diagnosis to his own actions in committing the crimes. This evidence is not relevant to the charges at issue. Absent any showing that appellant was aware of Chauncey’s disorder or that he acted in reliance upon it, and because appellant provides no citation of authority to support his contention that a medical record of another person should be admissible despite the confidentiality of such medical reports, the trial court did not commit, error in excluding the report and testimony, and is affirmed on this point.

II. Directed- Verdict Motions

For his second and third points of error, appellant asserts that the trial court erred in denying his motions for directed verdicts on the charges of criminal impersonation and fleeing. Directed-verdict motions are challenges to the sufficiency of the evidence. Peeler v. State, 326 Ark. 423, 427, 932 S.W.2d 312, 314 (1996). The test is whether the evidence is supported by substantial evidence, direct or circumstantial. Substantial evidence compels a conclusion with reasonable certainty beyond mere suspicion or conjecture. Id. We only review the evidence supporting the verdict and do so in the light most favorable to the State. Williams v. State, 329 Ark. 8, 16, 946 S.W.2d 678, 682 (1997).

Arkansas Code Annotated section 5-37-208 (Repl. 1997) provides that, “A person commits criminal impersonation in the second degree if he does an act in his pretended or assumed capacity or character with the purpose to injure or defraud another person and he: . . . Pretends to be an officer . . .“ Ark. Code Ann. § 5-37-208(b). The evidence presented on that charge established that Chauncey represented himself and appellant to be FBI agents and that appellant not only did not correct this misrepresentation, but responded when addressed by his alias. Further, two special officer police-type badges were recovered from the brothers’ vehicle. Reviewing this evidence in the light most favorable to the State, we cannot say that it was error for the trial court to have denied appellant’s directed-verdict motion and to have given this charge to the jury, and thus, the trial court is affirmed.

With regard to appellant’s contention that the trial court erred in denying his directed-verdict motion on the charge of fleeing, appellant does not deny that he fled, but challenges only the trial court’s jurisdiction over the offense, arguing that while in Faulkner county he was actually chasing the police and that it was not until the chase moved outside the county that appellant had the intent to flee. Finding that appellant had “put himself into the chase,” the'trial court denied appellant’s motion upon finding that Faulkner county had concurrent jurisdiction over the offense with the other counties through which the chase passed.

The trial court’s finding was correct. Arkansas Code Annotated section 16-88-108(c) (1987) provides that “when an offense is committed partly in one county and partly in another, or the acts, or effects thereof, requisite to the consummation of the offense occur in two (2) counties, the jurisdiction is in either county.” Ark. Code Ann. § 16-88-108(c). Here, the testimony was that appellant joined the chase in Faulkner county, before the pursuit reached the Conway county line. This court addressed a similar issue in Shaw v. State, 299 Ark. 474, 773 S.W. 2d 827 (1989), where an appellant argued that the Boone county court lacked jurisdiction over his fleeing charge when a portion of the crime giving rise to an element of the felony charge occurred in Carroll county. That argument was “summarily dispensed with by Ark. Code Ann. § 16-88-108(c),” cited above. Shaw, 299 Ark. at 479, 773 S.W. 2d at 829. See also Thrash v. State, 291 Ark. 575, 726 S.W. 2d 283 (1987).

The jury found the testimony of Officer Lackey to be credible, and it is the province of the jury, not this court, to weigh the evidence and pass on the credibility of witnesses. Rather than reweighing the evidence presented at trial, we determine whether there is substantial evidence to support the lower court’s findings. Freeman v. State, 331 Ark. 130, 133, 959 S.W. 2d 400, 402 (1998). See also Walker v. State, 330 Ark. 652, 955 S.W. 2d 905 (1997). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Walker v. State, 330 Ark. 652, 656, 955 S.W. 2d 905, 907 (1997). There is substantial evidence to support the verdict on this point and the trial court will be affirmed.

III. Evidence of Other Crimes

Appellant’s fourth point on appeal asserts that the trial court erred in allowing evidence of other crimes allegedly committed by appellant and Chauncey in a multi-state spree to be introduced against him. Appellant argues that the introduction of these other crimes was contrary to Ark. R. Evid. 404(b), which reads: “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.” Ark. R. Evid. 404(b). Appellant asserts that the State introduced these other crimes to show that appellant acted in conformity therewith and that to allow such introduction was error on the part of the trial court.

Appellant raised the affirmative defense of duress at trial, claiming that he feared that Chauncey would kill him and the women if he did not follow Chauncey’s instructions. Arkansas Code Annotated section 5-2-208 provides:

(a) It is an affirmative defense to a prosecution that the actor engaged in the conduct charged to constitute an offense because he reasonably believed he was compelled to do so by the threat or use of unlawful force against his person or the person of another that a person of ordinary firmness in the actor’s situation would not have resisted.
(b) The affirmative defense provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was reasonably foreseeable that he would be subjected to the force or threatened force described in subsection (a) of this section.

Ark. Code Ann. § 5-2-208 (Repl. 1997).

The defense of duress requires that at the time of the conduct constituting the offense the actor suffers an impairment of his ability to control his conduct such that he cannot properly be held accountable for it. Marx v. State, 291 Ark. 325, 328, 724 S.W.2d 456, 458 (1987).

Appellant testified on direct examination that his brother told him that if anything went wrong, he would kill him, and that appellant was afraid that if he did not follow Chauncey’s instructions, he would be killed. He further testified that Chauncey put a gun to the back of his head and told appellant to cut Janie Sanders’s throat. The State was permitted to ask appellant, over counsel’s objection, about crimes that were committed by the two brothers while they traveled from West Virginia to Oklahoma. Appellant testified that while he was with Chauncey, appellant robbed a motel in Tennessee at gunpoint. He also stated that he robbed a man at a roadside rest area in Tennessee at gunpoint. Appellant testified that he felt compelled by Chauncey to commit these crimes even though they were traveling in separate cars and appellant could have left his brother at any time. Appellant further testified that he and Chauncey robbed a convenience store in Oklahoma. According to appellant, he turned the surveillance camera away from the scene of the crime while Chauncey held two clerks at gunpoint.

This evidence was properly introduced to dispute appellant’s defense of duress to show that appellant willingly participated in a series of crimes in several states, even though appellant was traveling in a separate vehicle and could have removed himself at any time from any influence that might have been exerted by his brother. Evidence of other crimes is admissible to rebut an affirmative defense, where appropriate. For example, this court held that evidence of another crime was admissible under Rule 404(b) to rebut an alibi defense in Williams v. State, 276 Ark. 399, 401, 635 S.W. 2d 265, 266 (1982). More recently, the court of appeals has held that the evidence of prior bad acts may properly be admitted under Rule 404(b) to rebut a defense of entrapment in Kellogg v. State, 37 Ark. App. 162, 173, 827 S.W. 2d 166, 173 (1992). Where such evidence is not offered merely to show a defendant’s bad character, and is relevant to prove some material point rather than merely to prove the defendant is a criminal, evidence of prior bad acts which fits within the exceptions of Rule 404(b) is admissible.

A trial court’s decision to admit evidence under Rule 404(b) is reviewed under an abuse of discretion standard. Abernathy v. State, 325 Ark. 61, 64, 925 S.W. 2d 380, 381 (1996). The trial court ruled that the State could cross-examine appellant about other crimes in order to “test that defense insofar as it relates to his knowledge, plan, preparation, identity, or absence of mistake or accident.” The trial court found it appropriate under this rule for the State to inquire to determine whether the fear of his brother of which appellant testified was an honest or reasonable fear. Here, where such evidence was offered to rebut appellant’s affirmative defense of duress, the trial court properly allowed its introduction.

IV. Motion for Mistrial During State’s Closing Argument

Appellant asserts for his final point on appeal that the trial court erred in denying his motion for a mistrial during the prosecutor’s closing argument. In arguing to the jury regarding appellant’s claimed defense of duress, the prosecutor listed the series of crimes in which the brothers participated, culminating in their return to Arkansas from Oklahoma, and then said, “On and on and on, and then they come back here because of the storm. Then the man, the truck driver, brutally murdered . . .,” a reference to Chauncey’s alleged murder of a truck driver at a rest stop. Appellant had testified that he had seen a dark-skinned man at the rest stop, then watched his brother enter the restroom behind the man. Appellant later saw on television that the man had been murdered at the rest stop, and spoke with his brother about what he had seen on the news.

Appellant moved for a mistrial, claiming that there was no evidence that anyone had been brutally murdered, but that the prosecutor had claimed that he was involved in a brutal murder. The trial court found that there was evidence that appellant had seen a news story about the murder and discussed it with his brother. The court denied the motion for a mistrial and declined appellant’s request for an immediate admonition to the jury, but directed the prosecutor to “move away” from discussing the murder further. The jury had already been instructed that closing arguments of the attorneys were not evidence, and that the jurors were to disregard any argument having no basis in the evidence.

In Cobbs v. State, 292 Ark. 188, 728 S.W. 2d 957 (1987), this court held that in reviewing an allegedly improper closing argument,

it is the duty of the appellate court to look to the remarks, and weigh their probable effect upon the issues; then to the action of the trial court in dealing with them; and if the trial court has not properly eliminated their sinister effect, and they seem to have created prejudice, and likely produced a verdict not otherwise obtainable, then the appellate court should reverse. However, a wide range of discretion must be allowed the circuit judges in dealing with the subject, for they can best determine at the time the effect of unwarranted argument; . . .

Cobbs, 292 Ark. at 192, 728 S.W. 2d at 958 (emphasis added).

Here, while there was no direct evidence that Chauncey murdered the man at the rest stop, there was evidence that appellant saw Chauncey follow the man into the restroom and that appellant confronted Chauncey following a news account of the murder. This was but one reference in a series of actions which had been admitted into evidence for the purpose of challenging appellant’s claimed affirmative defense of duress. Even if the prosecutor’s statement was provocative, the trial court had properly admonished the jury not to consider arguments of counsel unsupported by the evidence. The trial court is in the best position to decide the issue of prejudice because of its first-hand observation. Puckett v. State, 324 Ark. 81, 87, 918 S.W. 2d 707, 710 (1996). A mistrial is a drastic remedy which should only be used where there has been an error so prejudicial that justice cannot be served by continuing the trial or when the fundamental fairness of the trial itself has been manifestly affected. Puckett, 324 Ark. at 89, 918 S.W. 2d at 711-12. The trial court has wide discretion in granting or denying a motion for a mistrial, and absent an abuse of that discretion, the trial court’s decision to deny a motion for a mistrial will not be disturbed. Id.

Even assuming that these comments by the prosecutor were inappropriate and prejudicial to appellant, the evidence presented of Barr’s guilt at trial was overwhelming and the fundamental fairness of the trial was not compromised. As we pointed out in Kidd v. State, 330 Ark. 479, 955 S.W. 2d 505 (1997), when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm. Kidd, 330 Ark. at 485, 955 S.W. 2d at 508, citing Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997) (the admission of additional drug paraphernalia was harmless error where there was overwhelming evidence to support convictions for delivery of controlled substances and possession of controlled substances with intent to deliver); Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996) (harmless error shown where trial court erred in admitting testimony of a prior bad act, which was remote in time and unconnected to the crime at issue); Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996) (prosecutor’s opening-statement reference to other offenses that occurred in another county held not reversible error because there was overwhelming evidence of defendant’s guilt). See also Kidd v. State, 330 Ark. 479, 955 S.W. 2d 505 (1997); Heard v. State, 322 Ark. 553, 910 S.W.2d 663 (1995); Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994); Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). In light of the overwhelming evidence of appellant’s guilt, it cannot be said that the prosecutor’s remark resulted in a verdict “not otherwise obtainable.” We affirm on this point as well.

V. Rule 4-3(h)Review

As required by Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for other reversible error, and none is found. Therefore, we affirm.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    J.R. NASH v. ESTATE OF Eddie Linn SWAFFAR
    98-428
    983 S.W.2d 942
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      J.R. Nash, appellant.

      Barber, McCaskill, Jones & Hále, P.A., by: Scott M. Strauss, Richard C. Kalkbrenner, and John S. Cherry; and Phil Stratton, for appellee.
   Ray Thornton, Justice.

Appellant, J. R. Nash, seeks to establish a lien for attorney’s fees on the assets of appellee, the Estate of Eddie Linn Swaffar. Eddie Linn Swaffar, Sr., died on April 8,1989, and his will was filed for probate on April 12, 1989. The probate court denied the relief sought, and this appeal ensues. We find no reversible error and affirm.

Background of Previous Litigation

This is the third appeal we have considered relating to this estate. The first appeal involved the issue whether a possibly pretermitted son, Billy, had ever been adopted by the decedent. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992). The disposition of this issue is not significant to the issues now before us.

The second appeal in this matter, Swaffar v. Swaffar, 327 Ark. 239, 938 S.W.2d 552 (1997) (Swaffar II) , followed a vigorously contested proceeding in the Probate Court of Faulkner County. In describing the matters before us in Swaffar II, we summarized the relevant elements of the proceedings in the probate court as foEows:

In July 1995, Appellee filed a final accounting accompanied by a petition for approval of the final accounting, final distribution, and for discharge as personal representative. AppeUant filed objections to the final accounting and asserted a claim of set-off against any alleged debts against the estate. After a hearing on January 5, 1996, the probate court entered an order denying AppeEant’s objections and claim for set-off and approving the final accounting. This appeal is from that order.

Swaffar II at 327 Ark. 238, 938 S.W.2d 553.

We considered and rejected several arguments that the final accounting showing a zero balance in the estate was in error. However, we determined that there was not sufficient evidence to support the trial court’s exclusion of two certificates of deposit from the assets of the estate as inter vivos gifts, and reversed and remanded the matter for the limited purpose of determining whether the two certificates of deposit had been properly excluded. Our decision affirmed the final accounting of the Estate of Eddie Linn Swaffar, Sr., except for a determination whether the certificates of deposits should have been included in the estate. Swaffar II at 327 Ark. 243, 938 S.W.2d 556.

The Current Litigation

Eddie Swaffar, Jr., and Mr. Nash entered into an employment agreement on September 5, 1989, for Mr. Nash to represent Eddie Swaffar, Jr., on a contingent-fee basis of one-third of any recovery, together with court costs and expenses. The agreement stated that neither party would settle any claim arising out of the matter without first obtaining the consent of the other. Pursuant to this agreement, Mr. Nash worked as attorney for Eddie Swaffar, Jr., through more than eight years of litigation, including the appeal in Swaffar II. On April 24, 1995, Mr. Nash filed notice of his attorney’s lien on any and all interests and benefits received and to be received by Eddie Linn Swaffar, Jr., from the estate of Eddie Linn Swaffar, Sr.

On July 21, 1997, after the decision in Swaffar II and before the probate court responded to our mandate, Eddie Swaffar, Jr., discharged Mr. Nash as his attorney in this matter. Mr. Nash continued to file pleadings as “attorney of record” on behalf of Eddie Swaffar, Jr., through July 28, 1997, and on August 14, 1997, filed a petition as attorney of record seeking to enforce his attorney’s lien on assets of the estate. On August 27, 1997, Mr. Nash moved to intervene in the remand of Swaffar II in order to protect his interest in any assets recovered by the estate as a result of his representation of Eddie Swaffar, Jr.

At a hearing on September 12, 1997, the probate court allowed Mr. Nash to intervene and examine Eddie Swaffar, Jr., for the purpose of establishing an attorney’s lien on the assets of the estate, but did not allow Mr. Nash to participate in the issue of the ownership of the two certificates of deposit.

In its order dated December 17, 1997, the probate court found that inter vivos gifts had been made of the certificates of deposit. Based upon its finding that the certificates of deposit were not assets of the estate, the trial court noted that the final accounting of the estate showed a zero balance, and found that imposing a lien on the zero balance in the final accounting of the estate would be meaningless and inappropriate.

Mr. Nash appeals the decision of the probate court, contending that court committed three errors. We will consider each of these allegations of error in the order they are presented.

As his first point on appeal, Mr. Nash argues that the trial court erred in ruling that he could not participate in the hearing on the ownership of the certificates of deposit, and contends that the possibility of gaining an attorney’s Hen on the certificates of deposit if they became part of the estate raised in him a right to intervene on the merits of that issue. Mr. Nash offers no citation of authority for this contention. We have often stated that assignments of error that are unsupported by convincing argument or authority will not be considered on appeal where it is not apparent without further research that the argument is well-taken. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1998). The case of Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), advanced by Mr. Nash in support of his argument, relates to litigation brought by the attorneys against a former client and is not applicable to this case. As we have noted, this is a proceeding in probate court pursuant to our remand for a determination of the ownership of two certificates of deposit, and not a trial of the issues which may exist between Eddie Swaffar, Jr., and his former attorney. In this proceeding, Mr. Nash has not filed an action against his former client, but rather he has attempted to establish a Hen on whatever assets may remain in the estate of his former client’s father.

The attorney’s lien provisions of Ark. Code Ann. § 16-22-304 make it clear that the lien attaches to any judgment or final order in his client’s favor. The statute provides that:

. . . [T]he attorney at law, solicitor, or counselor serving the notice upon the adversary party shall have a lien upon his client’s cause of action, claim, or counterclaim, which attaches to any settlement, verdict, report, decision, judgment, or final order in his client’s favor, and the proceeds thereof in whosoever’s hands they may come.

Ark. Code Ann. § 16-22-304(a)(1) (Repl. 1994).

Pursuant to that statutory provision, in the event the certificates of deposit were found on remand to be included in the assets of the estate, it appears that a lien would have attached. However, we have not been presented with any authority that the lien should attach to the certificates if they were inter vivos gifts passing outside the estate, and we know of no such authority. Neither have we been presented with any citation of authority for the argument that having an interest in the outcome of a former client’s cause of action should allow the intervention of the former attorney for the purpose of challenging the client’s position regarding the cause of action. See Dixon v. State, 260 Ark. 857, 862, 545 S.W.2d 606, 609 (1977).

Such a challenge of his client’s position also raises significant questions relating to a conflict of interest, as reflected by Mr. Nash’s examination of his former client, Eddie Swaffar, Jr., concerning the relinquishment of his claim to the certificates:

Mr. Nash: Have you [Eddie Swaffar, Jr.] received any benefits from your uncle [the executor of the estate] for waiving your claim to the CD’s?
Eddie Swaffar, Jr.: No.
Mr. Nash: You just decided to do that on your own?
Eddie Swaffar, Jr.: Yep.
Mr. Nash: Just decided to give up your claim to a fifty thousand dollar ($50,000.) CD plus eight years of interest?
Eddie Swaffar, Jr.: My name’s not on it.
Mr. Nash: Well, you fought to get it for eight years, but here just recently in the past, what? Month? You decided to give up your claim to it?
Eddie Swaffar, Jr.: I believe you might have fought for eight years about it. I — my name’s not on there. It’s not mine. So I am happy with that. If my name was on it, I’m sure they would hand it to me or put it in the estate.
The Court: Mr. Nash, you have your answer.

This examination of his former client by Mr. Nash illuminates the conflict which would be presented by allowing the dismissed attorney to participate in a proceeding where his personal position differed from the position of his former client.

The Model Rules of Professional Conduct prohibit an attorney from representing a client where the attorney has been discharged. Model Rules of Professional Conduct Rule 1.16(a)(3). Likewise, as the probate court was allowing Mr. Nash to proceed pro se at the hearing, Mr. Nash in essence became his own client, advocating his own position. To allow Mr. Nash to assert a position contrary to that Eddie Swaffar, Jr., would have been violative of Model Rule 1.7, which states that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client. Model Rules of Professional Conduct Rule 1.7(a). Considering our rules of professional conduct, and in the absence of any authority to the contrary, we conclude that the trial court did not commit error in finding that Mr. Nash could not participate in the hearing on the merits of ownership of the certificates of deposit.

For his second point of appeal, Mr. Nash argues that the trial court erred in holding that there was clear and convincing evidence that the certificates of deposit are inter vivos gifts to W. C. Swaffar and to Brandon Swaffar, the brother and youngest son of the decedent. We note that the estate presented testimony from Ms. Terry Clifton, the employee of the bank that issued the certificate of deposit at the request of the decedent. Ms. Clifton testified that Mr. Swaffar, Sr., had been badly burned and expressed a desire to purchase a certificate of deposit providing for a joint tenancy with right of survivorship for the benefit of W. C. Swaffar. W. C. Swaffar testified to the same effect and that a certificate of deposit was also purchased for the benefit of Brandon Swaffar. On the basis of this and other evidence, the trial court concluded that the certificates of deposit had been inter vivos gifts which were not to be included in the estate. Flowever, we do not reach this issue on appeal. For reasons already stated, we have determined that the trial court did not commit error in excluding Mr. Nash from participating in the resolution of the ownership of the certificates of deposit. A party has no standing to raise an issue regarding property in which he has no interest. McCollum v. McCollum, 328 Ark. 607, 612, 946 S.W.2d 181, 184 (1997) (citing Boyle v. A.W.A., Inc., 319 Ark. 390, 892 S.W.2d 242 (1995)). Because Mr. Nash could not participate on the merits of ownership of the certificates of deposit, he also lacks standing to appeal this issue.

For his third and final argument on appeal, Mr. Nash contends that the trial court erred in holding that all estate assets had been distributed, the estate closed, and that, therefore, appellant’s attorney’s lien was a moot issue. It is clear that an attorney’s lien which has attached to the proceeds of litigation follows the property when it is conveyed to others. Ark. Code Ann. § 16-22-304(a) (Repl. 1994). However, in the case before us, Mr. Nash failed to establish his attorney’s lien in Swaffar II.

Our disposition of Swaffar II, in approving the final accounting showing a zero balance in the estate, and denying the off-set for appellant’s expenses, was a remand for the limited purpose of considering whether the certificates of deposit were inter vivos gifts. Based upon the trial court’s finding that the certificates of deposit were inter vivos gifts, and not part of the estate, the final accounting in Swaffar II showing a zero final balance in the estate was not disturbed. The doctrine of law of the case prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless there is a material variance in the evidence before the court in each appeal. The application of the doctrine is not limited to issues raised in prior appeals, as it was developed to maintain consistency and avoid reconsideration of matters once decided during the course of a continuing single lawsuit. Miller County v. Opportunities, Inc., 334 Ark. 88, 95, 971 S.W.2d 781, 785 (1998) (citing Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588 (1994)). As we explained in Earney v. Sharp, 312 Ark. 9, 846 S.W.2d 649 (1993):

Whatever was before this Court, and is disposed of, is considered as finally settled. The inferior court is bound by the judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court cannot vary it for any other purpose than execution. It can give no other or further relief as to any matter decided by the Supreme Court, even where there is an error apparent; or in any manner inter-meddle with it further to execute the mandate, and settle such ■ matters as have been remanded, not adjudicated by the Supreme Court. [Emphasis in original.]

Earney at 312 Ark. at 10, 846 S.W.2d at 650.

By intervening in the remand of Swaffar II, Mr. Nash was bound by the application of the law-of-the-case doctrine, and the probate court was without authority to disturb the final accounting reflecting a zero balance in the estate for any purpose other than to add the certificates of deposit, had the court found they should be included. Without the addition of the certificates of deposit, the final accounting continued to reflect a zero balance, and the trial court did not commit error in determining that imposing an attorney’s Hen upon a zero balance would be meaningless and inappropriate. For the foregoing reasons, we find no reversible error in the actions of the probate court, and affirm.

Affirmed.

       Eddie Linn Swaffar, Jr., the appellant in Swaffar II, was represented by appellant, Mr. Nash, in this case. The Estate of Eddie Linn Swaffar [Sr.] is the appellee in both appeals.


text:
    Robert Earl TUCKER v. STATE of Arkansas
    CR 98-687
    983 S.W.2d 956
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      Maxie G. Kizer, for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant Robert Tucker, an inmate in the Tucker Maximum Unit of the Arkansas Department of Correction, was convicted of capital murder and sentenced to life in prison without the possibility of parole in the stabbing death of another inmate, Karlos Scales. Finding no reversible error, we affirm.

Because appellant does not challenge the sufficiency of the evidence our summary of the facts will be brief. While being observed by a security guard, appellant obtained permission to leave his cell to take a shower, but then proceeded to the victim’s open cell as the security guard called for backup. A few moments later, the bleeding victim, Mr. Scales, fled from his cell with appellant in pursuit. The continuation of the stabbing was witnessed by several guards and prisoners, and was captured on a videotape of the prison area in which the murder occurred. Appellant stabbed Mr. Scales approximately sixteen times with a homemade weapon. The evidence was sufficient to establish beyond a reasonable doubt that appellant committed capital murder by purposely causing the death of another person while incarcerated in the Department of Correction. Appellant argues two points on appeal.

For appellant’s first point on appeal, he argues that the trial court erred in ordering him to appear in the courtroom wearing prison clothes and restraints. The trial court has discretion to use physical restraints on a defendant for security purposes and to maintain order in the courtroom. Stanley v. State, 324 Ark. 310, 312, 920 S.W.2d 835, 836 (1996). The trial judge is in a better position to evaluate the potential for danger and disruptions than this court on appeal. Woods v. State, 40 Ark. App. 204, 206, 846 S.W.2d 186, 187 (1993). Pursuant to Ark. R. Crim. P. 33.4,

Defendants and witnesses shall not be subjected to physical restraints while in court unless the trial court has found such restraints reasonably necessary to maintain order. If the trial judge orders such restraints, he shall enter into the record of the case the reasons therefore. Whenever physical restraint of a defendant or witness occurs in the presence of the jurors trying the case, the judge shall upon request of the defendant or his attorney instruct the jury that such restraint is not to be considered in assessing the proof and determining the guilt.

Ark. R. Crim. P. 33.4.

In Stanley v. State, 324 Ark. 310, 920 S.W.2d 835 (1996), a case with facts substantially similar to the present case, we outlined the rules for this area of the law. In Stanley, a defendant contested a trial court’s ruling which forced him to wear prison garb and arm and hand restraints. Stanley, 324 Ark. at 312, 920 S.W.2d at 836. We held that it is not per se prejudicial when a defendant is brought into court handcuffed and that the defendant must affirmatively demonstrate prejudice. Stanley, 324 Ark. at 313, 920 S.W.2d at 837; see also Williams v. State, 304 Ark. 218, 800 S.W.2d 713 (1990). We based this holding on the language used by the United States Supreme Court that recited that where it is essential to maintain dignity, order, and decorum in the courtroom, restraints may be used. Illinois v. Allen, 397 U.S. 337 (1970). In Allen, after pointing out that “no one formula for maintaining the appropriate courtroom atmosphere will be best in all situations,” the Court fisted three permissible ways for a trial judge to handle an obstreperous defendant: (1) bind and gag him; (2) cite him for contempt; or (3) take him out of the courtroom until he promises to conduct himself properly. Id. at 343-44. Relying upon Allen, we have noted that we will not presume prejudice when there is nothing in the record to indicate what impression may have been made on the jurors or where the appellant did not offer any proof of prejudice. Hill v. State, 285 Ark. 77, 79, 685 S.W.2d 495, 496 (1992). Finally, in Stanley, we outlined times in which we have upheld the use of restraints including: (1) when the defendant has been charged with a violent crime; (2) when the defendant has engaged in disruptive behavior; or (3) when the defendant has attempted to escape. Stanley, 324 Ark. at 310, 920 S.W.2d at 837.

We have also recognized that when the defendant is an inmate at the state prison at the time of the trial, and these facts will be revealed during the course of the trial, any prejudice that may have resulted from having the defendant in restraints would be rendered harmless because the restraints add nothing to the trial that was not already apparent from the nature of the case. See Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997); Williams, supra.

The United States Supreme Court has noted that when the accused is being tried for an offense committed while in confinement, no prejudice can result from the defendant wearing prison garb because “no prejudice can result from seeing that which is already known.” Estelle v. Williams, 425 U.S. 501, 507 (1976) (discussing a Fifth Circuit case, Stahl v. Henderson, 472 F.2d 556 (5th Cir. 1973), where a defendant was tried in prison clothes for murdering a fellow inmate and certiorari was denied).

In the case at hand, the trial court did not abuse its discretion. It was presented with two motions that dealt with the issues of wearing prison clothes and restraints. Appellant’s counsel and appellant, through a pro se motion, requested that appellant be allowed to appear in court wearing “civilian clothing” and without the use of restraints. The judge took testimony on the motions at a pretrial hearing on the issue.

Assistant Warden Steve Outlaw from Tucker Maximum Security Unit testified that he believed that appellant was a security risk. He based this belief on the fact that appellant had received nine battery charges, one aggravated battery charge, one rape charge, seven assault charges, one setting fire charge, one possession of a firearm charge, one use of drugs charge, and one provoking and agitating a fight charge since appellant had been incarcerated. Mr. Outlaw further testified that he felt appellant should be confined in leg irons and handcuffs whenever he was outside the prison unit. Finally, he informed the court that in order to promote safety, appellant should be dressed in white prison clothes so as to stand out in a crowd if something were to happen. Mr. Outlaw suggested that this would also deter appellant from trying to escape.

In addition to this testimony, the judge took into consideration a report filed by Michael Simon, a supervising forensic psychologist from the Arkansas State Hospital, who had performed an evaluation on appellant ten days prior to the hearing. In his report, Dr. Simon stated that appellant had acted in an “oppositional and passive-aggressive manner” toward the doctor and gave “evasive and flippant” responses to the questions he was asked.

The trial court judge, pursuant to Ark. R. Crim. P. 33.4, gave a detailed ruling as to why appellant’s motions to wear civilian clothes and not be restrained were denied. He first acknowledged Dr. Simon’s letter, then discussed the fact that the events occurred at the prison and that the jury was going to be shown a videotape of the crime scene which would make appellant’s status as an inmate known to the jury. Finally, he deferred to Mr. Outlaw’s experience as a warden and determined that appellant should wear restraints and prison clothes.

Appellant contends that our decision in Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992) requires that we reverse and remand. The facts in Townsend are not on all fours with those present in the current case. Townsend was being tried for breaking or entering and theft of property committed in Pulaski County. He had a prior burglary conviction but no history of violent crimes. The trial court, relying on statements overheard by the bailiff, placed leg irons, which were in full view of the jury, on Townsend throughout the trial. Townsend received a twenty-one-year sentence for the crimes. We held that the trial court had no compelling reason for the use of the restraints and that the restraints must have had a telling effect on the jury in assessing punishment. Townsend, 308 Ark. at 272, 824 S.W.2d at 824. Townsend’s status as an inmate was not an element of the crime with which he was charged. In the present case, appellant’s status as a prisoner was an essential element of the charged criminal offense, his status as an inmate was shown as part of the evidence of the crime, and he stipulated to his status as an inmate. Unlike the circumstances in Townsend, the jury had full knowledge that appellant was an inmate when he committed the crime. Thus, we decline to accept appellant’s view as to the controlling precedential value of Townsend.

Here appellant has faded to show how he was prejudiced by the prison clothes and the use of restraints. Prior to the trial, appellant’s counsel polled all venire persons during jury selection, inquiring as to whether the presence of prison clothes and restraints would bias them against appellant. All potential jurors polled during this exchange answered the question negatively. During the trial, the judge gave the seated jury two admonishments regarding the issue. Here the trial court did not err, because appellant was being tried for a serious crime, he was considered dangerous by prison officials, and his status as an inmate was obvious to the jury. We have recognized these factors as legitimate reasons for the .use of prison clothes and restraints. The trial judge carefully considered the matter in making his findings, as required by Ark. R. Crim. P. 33.4. We therefore hold that the trial judge did not commit error by allowing appellant to be tried in prison clothes and restraints.

For his second point on appeal, appellant argues that the trial court erroneously excluded testimony from defense witness George Kazery. Specifically, he argues that pursuant to Ark. R. Evid. 701, Kazery should have been allowed to give opinion testimony as a lay witness.

We first note that the objection made below and the trial court’s ruling as to that objection involved a question of relevancy. On direct examination, appellant’s attorney asked Kazery whether witnessing appellant chase the victim through the prison explained to Kazery the significance of a conversation he had heard. The State objected to the question as irrelevant. The judge held a bench conference to consider the objection. The State and appellant’s attorney made arguments as to the relevancy of the testimony. During this exchange, appellant’s attorney failed to argue that the testimony should be allowed pursuant to Ark. R. Evid 701 relating to opinion testimony. After listening to the arguments regarding relevancy, the judge sustained the objection. Appellant now seeks to challenge the trial court’s ruling excluding this evidence based on a new argument that the witness should have been allowed to give opinion testimony as a lay witness. This argument was not presented to the trial court. We have repeatedly held that we will not address arguments, even constitutional arguments, raised for the first time on appeal. Tabor v. State, 333 Ark. 429, 433, 971 S.W.2d 227, 229 (1998); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Travis v. State, 328 Ark. 442, 944 S.W.2d 206 (1997); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). Because the argument we are now asked to review was not made below, we will not consider it on appeal and the trial court’s ruling is affirmed.

4-3 (h) Review

In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and ho error has been found.

Affirmed.


author: Lavenski R. Smith, Justice.

text:
    Dyrong GODBOLD v. STATE of Arkansas
    CR 98-812
    983 S.W.2d 939
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      Ann C. Hill and Morse U. Gist, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Lavenski R. Smith, Justice.

Appellant, Dyrong God-his R. bold, appeals conviction for capital murder from the Garland County Circuit Court. He alleges that the trial court committed three reversible errors in rulings it made adverse to him. We disagree and affirm the trial court’s rulings.

James Rogers was found dead early on September 21, 1997, apparently from stab wounds. Police discovered the deceased’s pickup truck later the same day. Following an investigation, police arrested Godbold on September 23, 1997, and subsequently charged him with robbery and capital murder. Police also arrested his girlfriend, Jamee Knippers, and charged her as an accomplice.

I

Appellant first contends that the court erred by admitting into evidence an incriminating statement he made while in the State’s custody. The trial court ruled correctly. Appellant gave the statement in question to Jackson Jones, a hearing officer for the Arkansas Post Prison Transfer Board. Apparently, Mr. Godbold was on probation at the time of his arrest. On October 28, 1997, Mr. Jones conducted a hearing on whether Mr. Godbold’s parole should be revoked ostensibly due to his capital murder charge. Mr. Jones’s testimony indicates that generally the parolee, his parole officer, and any witnesses either wishes to call are present. Following Detective Steve Cooley’s testimony regarding the charge, Jones placed Mr. Godbold under oath and offered him the opportunity to speak but indicated to him he did not have to do so. Appellant chose to speak. He volunteered information about his encounter with murder victim James Rogers on the night of September 20, 1997. He stated that he and decedent argued over a drug deal, struggled, then parted with decedent leaving on foot and appellant in decedent’s truck. He indicated he drove the victim’s vehicle, picked up his girlfriend in it and left the area. He also gave exculpatory statements in his girlfriend’s behalf.

It is undisputed that Godbold was not given formal Miranda warnings before his statement. He also spoke without counsel present. Appellant contends that because he was not advised of his Miranda rights prior to his inculpatory statements that they should have been excluded from evidence in his trial. On April 6, 1998, one day prior to trial, the court held a hearing exclusively on the issue of the admissibility of appellant’s statement. At its conclusion, the court denied his motion. This appeal arises principally from that denial. The trial court permitted the introduction of Jones’s testimony on the following bases: (1) appellant was not under police interrogation, (2) no questions were asked, and (3) appellant intelligently, knowingly, and voluntarily made the statements. On appeal, appellant cites no controlling or persuasive authority which would indicate that the court’s refusal to exclude his inculpatory statement was erroneous given the facts of the instant case.

This court examines the totality of circumstances to determine whether a trial court properly admitted a defendant’s statement. McCoy v. State, 325 Ark. 155, 925 SW2d. 321, (1996). Miranda warnings are only necessary when a statement is made during a custodial interrogation. Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996). When appellant gave a voluntary, unsolicited statement regarding events surrounding the commission of the crime with which he was charged to a parole hearing officer, he did so at his own peril. The undisputed facts in this case are that Jackson Jones informed appellant of his opportunity to speak in response to the State’s revocation motion. There is no evidence that indicates he was coerced or compelled to speak. He freely chose to do so. The trial court therefore did not err in admitting his statement into evidence.

II

Appellant contends the trial court abused its discretion when it denied appellant’s motion for continuance. It did not. Appellant’s girlfriend, Jamee Knippers, was charged as an accomplice with appellant in the murder of James Rogers. She pleaded innocent to the charge and maintained her plea up until the day before the trial. At that time she changed her plea and agreed to testify for the State at trial. Upon discovery of this turn of events, appellant made an oral motion to the court for a continuance contending an adequate defense could not be prepared without knowledge of her intended testimony. The court denied the motion.

We will not reverse a trial court’s denial of a continuance motion in the absence of abuse of discretion. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). Under our rules the court may grant a continuance only upon a showing of good cause and only for so long as necessary. Ark. R. Crim. P. 27.3 (1998). The appellant failed to make a showing of necessity in that he was aware for quite some time that Ms. Knippers might change her plea. He also knew that the court could not compel her to answer his questions. The court’s and appellant’s actions at trial further demonstrate that no prejudice resulted from the denial. Following the State’s direct examination of Ms. Knippers, the court offered appellant the opportunity to recess for the day before cross-examining her, thus giving appellant the benefit of the evening to prepare with knowledge of her testimony. Appellant refused the offer and conducted his cross-examination in short order giving no indication whatever that more time would have produced a more favorable outcome. From the facts contained in the abstract the court’s decision was far from an abuse of discretion and appears eminendy reasonable.

Ill

Appellant’s final point of alleged reversible error was the court’s denial of appellant’s request for mistrial. Appellant bases this contention upon an inadvertent statement of the deputy prosecutor during closing arguments where in his summation he said,

I want you to remember the testimony of Jamee Knippers. When Dyrong picked her up in the truck, he did not complain of any physical injury. He was not injured. That is inconsistent with what he told the parole — with what he told Jackson Jones and with what he told Jaime when he got back in the vehicle, “I was in a fight.”

Appellant objected to this statement because it was a reference to the occupation of witness Jackson Jones. Mr. Jones was the parole board hearing officer who earlier testified about the defendant’s inculpatory statement. Appellant contends that such a reference, albeit unintentional, constituted an impermissible attempt to prove a prior conviction to bolster the prosecution’s case under Rule 609 of the Arkansas Rules of Evidence, thus entitling the appellant to a mistrial. We disagree.

A mistrial is a drastic remedy to which the court should resort only when there has been an error so prejudicial that justice cannot be served by continuing the trial. It should only be ordered when the fundamental fairness of the trial itself has been manifestly affected. King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994); Kemp v. State, 324 Ark. 178, 198, 919 S.W.2d 943, 952, (cert. denied), 117 S.Ct. 436 (1996).

In the instant case, the reference to the witness’s relationship to the defendant through the parole system was accidental. The prosecutor quickly moved from the point and little, if any, inference could be drawn by the jury about the defendant’s prior crimes. Moreover, upon appellant’s motion for mistrial, the court offered to and did admonish the jury to disregard any reference to any tide of Jackson Jones. The court’s admonition cured what prejudice, if any, created by the prosecutor’s slip of the tongue. The court’s mistrial motion denial did not constitute an abuse of discretion.

Affirmed.


text:
    Lela K. PHELPS v. U.S. LIFE CREDIT LIFE INSURANCE COMPANY
    98-446
    984 S.W.2d 425
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      Walters, Hamby & Verkamp, by: Michael Hamby, for appellant.

      Horne, Hollingsworth & Parker, by: Allan W. Horne and Mark H. Allison, for appellee.
   Lavenski R. Smith, Justice.

This appeal arises from a contract action seeking enforcement of a credit life insurance policy. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 1 — 2(b)(1), (4) and (6) (1998) (certified to this court because issue involves case of first impression, substantial public interest, and substantial question of law concerning statutory interpretation, specifically Ark. Code Ann. § 23-79-107 (Repl. 1992)).

Appellee, U.S. Credit Life Insurance Company, sold the policy by its agent to Lincoln Phelps incident to his purchase of a pick-up truck on November 4, 1994. Approximately twenty-two months later, Mr. Phelps died suddenly from an acute myocardial infarction with a chronic condition of cardiac arrhythmia. Appellant, the widow of Lincoln Phelps and administratrix of his estate, filed a claim with appellee seeking payment of death benefits to the creditor beneficiary, Ford Motor Credit. Appellee denied the claim contending that decedent’s application answers misrepresented his true health condition. Appellee asserted that if it had known of decedent’s heart condition it would not have issued the policy and was therefore entitled to rescind it under applicable state law.

Appellant filed suit on January 24, 1997, in Sebastian County Circuit Court alleging breach of contract and seeking a jury trial. Appellee defended its denial of benefits alleging misrepresentation and nondisclosure. It further requested, by motion, transfer of the matter from circuit to chancery court because it sought rescission of the contract which is an equitable remedy unavailable in circuit court. The circuit court granted appellee’s motion transferring the case to the Sebastian County Chancery Court in July 1997. The parties tried the case on January 22, 1998. Chancellor J.M. Spears issued his order February 2, 1998, wherein he found (1) that both parties acted in good faith, (2) that the application question was ambiguous but that Ark. Code Ann. § 23-79-107(a) (3) controlled and it entitled appellee (U.S. Life) to rescind the contract because decedent’s answers, while in good faith, were not adequate disclosure of his health condition. The court accepted the company’s good-faith contention that it would not have issued the policy had it known of the decedent’s heart condition. The Chancellor regarded the ambiguity as immaterial under section 23-79~107(a)(3) in that U.S. Life would not have issued the policy had Mr. Phelps answered “yes” regarding his heart condition. The trial court by order entered on March 10, 1998, granted U.S. Life’s request for rescission, limited U.S. Life’s liability to return of the premium and dismissed Phelps’s complaint.

Mrs. Phelps raises three issues on appeal. She alleges error below (1) by the Circuit Court of Sebastian County in transferring the matter to Chancery Court, (2) by the Chancery Court of Sebastian County in its application of the law to its construction of the contract and (3) in its construction of Ark. Code Ann. § 23-79-107 (a) (3).

Appellant’s arguments for the circuit court retaining jurisdiction on the basis of rescission-at-law theory are reasonable yet unpersuasive relative to the facts of this case. Appellant originally filed this action in circuit court seeking money damages. However, appellee’s answer raised the equitable defense of rescission, and its motion to transfer to chancery court was granted. Phelps contends that U.S. Life effected rescission at law by its declination letter and tendering a premium refund. According to appellant, if U.S. Life’s rescission was one at law rather than in equity it could be accomplished under the jurisdiction of the circuit court in that appellee would have an adequate remedy at law and obviate transfer to an equity court. To the contrary, appellee contends that this case involves cancellation of an instrument, which is exclusively the province of the chancery court. Appellee is correct.

Appellee’s defense sought rescission of its insurance policy, which is cancellation of an instrument. In Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980) we observed that rescission is both a legal and equitable remedy but transfer to equity is necessary when an exclusively equitable remedy, such as cancellation of an instrument is raised. In a relatively recent discussion of the distinction between legal and equitable rescission, this court pointed out that rescission is a remedy cognizable in equity. It is distinct from rescission at law in that equitable rescission requires the affirmative powers of the court of equity to rescind or undo the contract whereas in rescission at law the court merely grants restitution after the party seeking it has achieved rescission by its own acts. Maumelle Co. v. Eskola, 315 Ark. 25, 29, 865 S.W.2d 272, 274 (1993). In this case, appellee’s affirmative defense sought to cancel an instrument which is exclusively an equitable power. A court of law does not have subject-matter jurisdiction to itself rescind or undo the contract. Coran v. Keller, 295 Ark. 308, 311, 748 S.W.2d 349, 351 (1988).

Rescission at law would be appropriate where the purpose of the action is merely to achieve return of consideration paid as in a sale of goods. However, in the instant case, cancellation of an instrument was the defense objective in seeking rescission. This remedy the circuit court would not grant. Therefore the circuit court did not err in transferring the case to chancery court. In any event, U.S. Life correctly points out that even if the circuit court erred in transferring the case to chancery court, the appellant suffered no prejudice in that the central issues were legal questions for the court and not factual questions for a jury.

Appellant also contends that the chancellor erred when he determined that the contract provision in question was indeed ambiguous but should not be construed against the insurer. The application question queried,

During the last twelve months, have you been treated for or hospitalized for any condition of the heart, liver, kidney, lung or other life threatening illness?

The Chancellor found that this question was susceptible to two reasonable interpretations and was therefore ambiguous. One interpretation propounded by USLife viewed the question as a compound question asking (1) have you been treated or hospitalized for any condition of the heart, liver, kidney, or lung? and (2) have you been treated for any life threatening illness? Alternatively, the question could also reasonably be understood to have asked: have you been treated for or hospitalized for any condition of the heart, liver, kidney, or lung which was life threatening? Appellant argues that the decedent made the latter interpretation which as an applicant he could answer truthfully in the negative based upon his understanding of his condition as explained to him by his treating physician. The ambiguity is patent as even appellee contends it is a compound question asking for two dissimilar medical assessments.

Courts must give effect to the plain wording of an insurance policy according to the ordinary meaning of its terms where the language is unambiguous. Ingram v. Life Ins. Co. of Georgia, 234 Ark. 771, 773, 354 S.W.2d 549, 550 (1962). However, once a definitive finding is made that an ambiguity exists in its terms, it is incumbent upon the trial court to construe the provision in favor of the insured. As stated by this court in Keller v. Safeco Ins. Co.:

A cardinal rule of insurance law is that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer. . . . An ambiguity exists when a provision is susceptible to more than one reasonable interpretation. If there is doubt or uncertainty as to the policy’s meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. . . .

317 Ark. 308, 311, 877 S.W.2d 90 (1994). See also Uniguard Sec. Ins. Co. v. Murphy Oil USA, Inc., 331 Ark. 211, 962 S.W.2d 735 (1998). In construing policy language, we will resolve all reasonable doubts in favor of the insured. State Farm Mut. Auto Ins. Co. v. Traylor, 263 Ark. 92, 562 S.W.2d 595 (1978). In particular, any written instrument such as a contract, binder, application, or memorandum, delivered by the insurer to an applicant, is strictly construed against the insurer where the language employed is ambiguous. See Farm Bureau Mut. Ins. Co. v. Milburn, 269 Ark. 384, 387, 601 S.W.2d 841, 842 (1980). Applying these principles to the instant case, once the trial court found the subject language to be ambiguous, it erred in not construing the same against the appellee.

Appellant also alleges error by the court in its construction of Ark. Code Ann. § 23-79-107. We agree. The chancellor held the question’s ambiguity to be immaterial under subsection 23-79-107(a)(3). The trial court interpreted this statute to give appellee a means of invalidating the contract even if its questions were ambiguous. The chancellor erroneously concluded that appellee in good faith would not have provided coverage had it known Mr. Phelps was being treated for a heart condition. The statute fails to support such a holding. The court misconstrued subsection (a)(3). It is clearly intended to apply to “[Misrepresentations, omissions, concealment of the facts and incorrect statements . . ,” In the instant case, no misrepresentations, omissions, concealment of facts, and incorrect statements occurred as described in § 23-79-107, and therefore this statutory provision is inapplicable to the facts. The chancellor, in fact, specifically found that Mr. Phelps was truthful in his answer of “no” to the question whether he was being treated for a life-threatening condition, and that Mr. Phelps and appellee had acted in good faith in their dealings with one another. This is particularly so in light of our holding that the application must be construed in favor of the insured and against the company. In sum, § 23-79-107 is altogether inapplicable to the facts of this case and does not avail appellee the authority to void coverage under the policy previously issued to Mr. Phelps. For all the foregoing reasons, we reverse and remand.

Reversed and remanded.

       See Ark. Code Ann. 23-79-107(a)


author: Per Curiam.

text:
    Kingrale COLLINS v. STATE of Arkansas
    CR 98-563
    983 S.W.2d 960
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      Chris Tarver, for appellant.
    No response.
   Per Curiam.

Attorney Chris Tarver, counsel for appellant Kingrale lant Kingrale Collins, appeared before this court on January 21, 1999, to show cause why he should not be held in contempt for failing to file his client’s brief on or before December 10, 1998, a final extension date, as previously ordered. Collins v. State, 336 Ark. 81, 983 S.W.2d 431 (1999).

. During the hearing conducted on January 21, 1999, we accepted Mr. Tarver’s guilty plea for failing to file his client’s brief prior to the final extension date of December 10, 1998. Mr. Tarver has taken responsibility for his failure to file the brief, and’has submitted statements in mitigation of his actions when making his plea.

Based upon the foregoing, we hold that Chris Tarver is in contempt for failing to file his client’s brief in a timely manner, and we fine him $250.00. We also note that Mr. Tarver made a commitment to this court to have his client’s brief filed with the clerk of this court on or before February 10, 1999. Any failure to fulfill this obligation will result in further proceedings. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    D.B. GRIFFIN WAREHOUSE, INC. v. Margaret SANDERS, Individually and as Administratrix of the Estate of Charles Sanders, Deceased; Travelers Insurance Company, Intervenor
    97-1573
    986 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      Daggett, Van Dover, Donovan & Perry, PLLC, by: J. Shane Baker, for appellant.

      Wilson & Valley, by: E. Dion Wilson, for appellee.
   Per Curiam.

This is the second motion to dismiss filed by appellee Margaret Sanders. Sanders asserts that an error of law was committed in our first per curiam denying her motion to dismiss. See D.B. Griffin Warehouse, Inc. v. Sanders, 332 Ark. 510, 965 S.W.2d 784 (1998) (per curiam) (Sanders I). She urges that this court admitted its error in O’Fallon v. O’Fallon, 335 Ark. 229, 980 S.W.2d 246 (1998), and that we should rehear the original issue and dismiss this appeal. We decline to do so because Sanders misreads the O’Fallon decision.

In Sanders I, this court endorsed the longstanding practice of the Supreme Court Clerk’s office to accept records as timely filed when the records are tendered on time and when defects in form are subsequently corrected. We said the same holds true when a filing fee is subsequently paid. In such cases, the date of tender becomes the date of filing and the record is marked filed as of that date. For purposes of the record tendered on December 26, 1997, in Sanders’s case, the errors in form were corrected and the filing fee paid as of January 2, 1998. This meant that the record was considered filed as of December 26, 1997, and marked filed as of that date. That is also the date that the briefing schedule began to run.

The mistake referred to in O’Fallon v. O’Fallon, supra, does not help Sanders. In O’Fallon, we said that we were incorrect in Sanders I in referencing a seven-day window of opportunity to correct formal errors and to pay the filing fee. In truth, the seven-day period is for correcting briefs. See Ark. Sup. Ct. R. 4-3(k). As we said in O’Fallon, the period of time for correcting errors in form and paying a filing fee may be longer. Thus, the mistake alluded to in O’Fallon was that we circumscribed the time frame to seven days for correcting defects in form in Sanders I, when the practice of the Clerk’s office is to allow even more time for that purpose when necessary. Manifestly, whether the time limit for corrections is seven days or longer does not benefit Sanders or support her motion to dismiss.

Motion denied.


text:
    IN the MATTER of Arkansas Bar Applicant Charity ELMER
    99-59
    984 S.W.2d 448
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      Charity Elmer, movant.
   Per Curiam.

Movant Charity Elmer, who desires to be considered an considered an applicant for the February 1999 Arkansas Bar Exam, moves this court to waive the strict enforcement of Regulation 5, which was adopted by the Board of Law Examiners and approved by this court pursuant to Rule I of the Rules Governing Admission to the Bar. Regulation 5 reads:

The application required by these rules shall be in the office of the Secretary of the State Board of Law Examiners no later than 5:00 p.m. on the date that is determined by the provision of Rule X.

The deadline for applications for the February 1999 Arkansas Bar Exam was December 28, 1998, at 5:00 p.m. The application was delivered the morning of December 29, 1998.

The movant shows this court that on December 23, 1998, she completed Federal Express paperwork to have her application sent from Springfield, Missouri, to Little Rock via overnight priority mail. By mistake, a secretary in the movant’s law firm where she was working sent the application via interoffice Federal Express to the law firm’s Kansas City office. The mistake was not realized until the morning of December 28, 1998. The movant then talked to the secretary of the Board of Law Examiners in Little Rock, who advised that the application must be in by 5:00 p.m. that day. She made arrangements to send the application by U.S. Airways to Little Rock, which would have met the deadline. However, the courier service which delivered the application to U.S. Airways in Kansas City failed to complete a security-release form. Because of that lapse, the application was rejected for that flight. When the movant realized this, she again talked to the secretary of the Board and advised him that she could arrange for the application to be delivered to his office by 6:30 p.m. He told her that that would be too late. Because of his response, she sent the application by next-day priority mail, and it was delivered the morning of December 29, 1998.

While the checkered history of the application represents a combination of snafus and mistakes, we have fixed a deadline which this court maintains is absolute. In doing so, we have made a considered judgment that a strict cutoff is preferable to a case-by-case determination by the secretary of the Board or by this court of what circumstances amount to substantial compliance with the five o’clock rule. To the extent the secretary of the Board has deviated from this standard in the past by even a few minutes, this is unacceptable. The five o’clock deadline is conclusive of what constitutes a timely or late filing. This is analogous to the five o’clock rule which we have adopted for documents filed in the Supreme Court Clerk’s office. See Ark. Sup. Ct. R. 1-4.

Motion denied.

Arnold, C.J., and Thornton, J., would grant.


text:
    Shane PACK v. STATE of Arkansas
    CR 98-1358
    983 S.W.2d 126
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      Clarence W. Cash, for appellant.
    No response.
   Per Curiam.

Appellant Shane Pack, by and through his attorney, has filed a motion for belated appeal. His attorney, Clarence W. Cash, admits by motion that the appeal was not timely filed due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Cindy REAVES v. FARM BUREAU INSURANCE COMPANY of Arkansas, Inc., and Southern Farm Bureau Casualty Insurance Company
    98-1528
    984 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      Gibson Law Office, by: C. S. “Chuck” Gibson II, for appellant.

      Laser, Wilson, Btffiord & Watts, P.A., by: David M. Donovan, for appellees.
   Per Curiam.

Appellant Cindy Reaves moves for a rule on on the clerk and shows this court that on February 17, 1998, an order was entered granting summary judgment in favor of appellees Farm Bureau Mutual Insurance Company of Arkansas, Inc., and Southern Farm Bureau Casualty Insurance Company. Copies of the order were shown on the order as going to counsel for the parties. On July 16, 1998, Farm Bureau’s counsel wrote the trial court concerning the status of the summary-judgment matter. On August 28, 1998, Reaves moved for an enlargement of time of thirty days in which to file her appeal because she failed to receive a copy of the summary-judgment order until July 27, 1998. On September 8, 1998, the trial court entered an order enlarging the time for Reaves to file her notice of appeal to September 28, 1998. Reaves filed her notice of appeal on September 10, 1998. On December 10, 1998, Reaves tendered her record in this matter, and the Supreme Court Clerk refused to file it as untimely.

Rule 4(a) of the Rules of Appellate Procedure — Civil reads in pertinent part:

Upon a showing of failure to receive notice of the judgment, decree or order from which appeal is sought, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed sixty (60) days from the expiration of the time otherwise prescribed by these rules. Such an extension may be granted before or after the time otherwise prescribed by these rules has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.

In the instant case, time for appealing the order of summary judgment entered on February 17, 1998, expired on March 19, 1998. Sixty days from that date ended on May 18, 1998. No motion for enlargement of time was filed until August 28, 1998, and the notice of appeal was not filed until September 10, 1998. The notice of appeal was filed two hundred and five days after the order of summary judgment was entered.

As we said in Miller v. King, 322 Ark. 819, 912 S.W.2d 416 (1995) (per curiam), the appellant bears the responsibility of being aware of proceedings and filing a timely notice of appeal. Under Rule 4(a), the trial court lost jurisdiction to enlarge the time after the sixty-day period had run, and that date was May 18, 1998.

. [1] Motion denied.

Glaze and Imber, JJ., not participating.

       We note that even under the amended Rule 4 of the Rules of Appellate Procedure-Civil, which was adopted this date and which does not apply to this case, Reaves’s motion to enlarge time was not filed within 180 days of the entry of the summary-judgment order.


author: Per Curiam. Robert L. Brown, Justice,

text:
    STATE of Arkansas v. Hezile EARL, Jr.
    CR 97-1310
    984 S.W.2d 442
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellant.

      Mark F. Hampton, for appeEee.
   Per Curiam.

Appellee Hezile Earl, Jr., seeks the recaE of this court’s mandate issued on November 10, 1998, and bases his motion on the Supreme Court’s recent decision in Knowles v. Iowa, No. 97-7597 (U.S. Sup. Ct. Dec. 8, 1998). There, the Supreme Court held that a search incident to a traffic violation conducted pursuant to Iowa Code Ann. § 805.1(4) violated the Fourth Amendment. While § 805.1(4) is simEar or equivalent to our Ark. R. Crim. P. 5.5, which was in issue in Earl’s case here, Earl, unlike the defendant in Knowles, did not challenge Rule 5.5’s constitutionality. See State v. Earl, 333 Ark. 489, 970 S.W.2d 789 (1998). In fact, this court emphasized this point, stating the foEowing:

We are aware the American Bar Association has recommended that Rule 5.5 and similar rules employed in other jurisdictions not be used due to questions pertaining to its constitutional validity. However, Rule 5.5’s constitutionality is not before us.

Id. at 496, 970 S.W.2d at 793.

Thus, Earl never timely challenged Rule 5.5’s constitutionality at his hearing below or on appeal, and he did so only after the Knowles case was decided and after our court’s mandate was issued. Earl cites no authority that supports the recall of a mandate in these circumstances, and we are unaware of any. Consequently, we deny Earl’s motion to recall mandate.

Brown, Imber, and Thornton, JJ., dissent.

Robert L. Brown, Justice,

dissenting. I would grant Hezile Hezile Earl, Jr.’s motion to recall the mandate in this case.

The constitutional issue involved is whether a police officer can search a person’s car following a routine traffic stop when no arrest has been made. Just last month, the United States Supreme Court decided clearly and emphatically in a unanimous decision that a police officer could not conduct such a search without violating the Fourth Amendment’s proscription against unreasonable searches. See Knowles v. Iowa, No. 97-7597 (U.S. Sup. Ct. Dec. 8, 1998). That is precisely the issue involved in the Earl case.

The mandate from our court permitting the search of a car following a traffic stop in Earl’s case was issued on November 10, 1998. This was less than thirty days before the Supreme Court’s decision in Knowles v. Iowa, supra. Earl filed his motion for our court to recall our mandate the same day that the Supreme Court handed down its decision in the Knowles case. It is clear that Earl was not dilatory but acted in timely fashion.

This court’s rules provide for recalling a mandate. See Ark. Sup. Ct. R. 5-3(d). However, our rules do not specify what criteria must be met to warrant a recall. Nor do we have cases in Arkansas giving us guidance on this question. But even though this court has never addressed the issue of recalling a mandate because of a subsequent United States Supreme Court decision, the federal courts have recognized certain limited and exceptional circumstances in which a mandate can be recalled. These exceptional circumstances include when a subsequent Supreme Court decision renders a previous appellate court decision demonstrably wrong. See, e.g., U.S. v. Skandier, 125 F.3d 178 (3d Cir. 1997); U.S. v. Tolliver, 116 F.3d 120 (5th Cir. 1997); Nevius v. Sumner, 105 F.3d 453 (9th Cir. 1996); Greater Boston Television Corp. v. F.C.C., 463 F.2d 268 (D.C. Cir. 1971). The source of this power to recall a mandate is rooted in the inherent power of the court to protect its processes (see Zipfel v. Halliburton Co., 861 F.2d 565 (9th Cir. 1988)), and will be exercised when good cause or unusual circumstances justify the remedy. See Nevius v. Sumner, supra. As the Ninth Circuit in Nevius said, “[W]e will recall a mandate only when we are animated by ‘an overpowering sense of fairness and a firm belief that this is the exceptional case requiring recall of the mandate in order to prevent an injustice.’” (quoting Verrilli v. City of Concord, 557 F.2d 664 (9th Cir. 1977)). To recall a mandate, the infirmity in the appellate court’s decision must be clearly tied to the subsequent Supreme Court decision. See Nevius v. Sumner, supra.

I am convinced that the Earl case is just such an exceptional circumstance where the mandate should be recalled. In Knowles, the Supreme Court decided the same issue contrary to the opinion of this court. And Earl moved immediately to recall the mandate issued less than 30 days previously which had been premised on an erroneous decision. See Greater Boston Television Corp. v. F.C.C., supra (whether to recall a mandate may be affected by timeliness of request).

While admitting that the statute at issue in Knowles (Iowa Code Ann. § 805.1(4)) is virtually identical to our Ark. R. Crim. P. 5.5, the State argues that Earl never contended that Rule 5.5 violated the Fourth Amendment. But Earl did in fact claim that the application of Rule 5.5 to his case was violative of the Fourth Amendment. After the State appealed the trial court’s suppression of the contraband due to the unreasonable search, Earl wrote as follows in his appellee’s brief:

The Appellant’s interpretation of Rule 5.5 would have unsettling ramifications on future traffic stops where a citation, rather than arrest, is typically issued.
First, if the Court were to agree with the Appellants, every citation issued with regard to a traffic violation or a violation committed in the officer’s presence would give unprecedented authority to officers to conduct unlimited searches incident to “arrest.” For example, a person who fails to signal a lane change would be subject to arrest under Rule 4.1(iii). The officer who typically issues a citation for this violation gives only a citation. In applying Rule 5.5 the way the Appellant has interpreted it, the officer would still be allowed to conduct an unlimited vehicle search of the vehicle compartment incident to arrest. This search could take place without probable cause or reasonable suspicion. Counsel for Mr. Earl can only speculate as to how dangerous this application of Rule 5.5 could be. Anyone subject to a “traffic stop” would also be subject to a search of their vehicle.
Second, a favorable ruling for the Appellants would give a “back door” to an officer conducting an otherwise unlawful search. Mr. Earl presents the facts in his case as an example. An arrest was never mentioned by Officer Ralston. He conducts what he thought to be a lawful search at the time and discovers during pre-trial that it was not. The appellant, knowing that a citation has been issued regarding the traffic violation, then relies on the language set out in Rule 5.5. Under this rationale since a citation was issued, Mr. Earl was under arrest according to Rule 5.5 and the subsequent search of his vehicle was lawful. If this were the case, law enforcement officers could disregard a majority of court precedents with regard to vehicle searches. See Carrol v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

Appellee Earl’s original brief, pp. 2-3. All three of the Supreme Court cases cited by Earl deal with the Fourth Amendment and whether a warrantless search of a car passed constitutional muster. His argument is clearly and cogently made that the State’s interpretation and application of Rule 5.5 would violate the Fourth Amendment, as construed by the Supreme Court. As in Knowles, Earl did not argue that Rule 5.5 was unconstitutional on its face but as applied to his case.

Exceptional circumstances exist for the recall of this mandate, and simple fairness requires it. Otherwise, a man will be tried for possession of contraband which the United States Court has clearly held inadmissible against him. I would correct the injustice at this stage, and for that reason, I respectfully dissent.

Imber and Thornton, JJ., join.

       We disagree thoroughly with the dissent’s conclusion that Earl raised the constitutionality of Rule 5.5.