author: Jack Holt, Jr., Chief Justice.

text:
    Don Paul SMITH v. STATE of Arkansas
    CR 89-110
    778 S.W.2d 947
    Supreme Court of Arkansas
    Opinion delivered November 6, 1989

      John Joplin, for appellant.

      Steve Clark, Att’y Gen., by: Kay J. Jackson Demailly, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Don Paul Smith, was convicted on February 27, 1989, of rape, burglary, and theft of property. Smith was sentenced under the habitual offender code provisions, Ark. Code Ann. § 5-4-501 (1987), and received sixty years for rape, twenty years for burglary, and twenty years for theft of property. Both of the twenty year sentences are to run concurrently with the sixty year sentence, and the sixty year sentence is to run consecutively with a prior ten year sentence. On appeal, Smith contends that the trial court erred on five points.

The victim, a 56 year-old woman who lived alone in a first floor apartment, testified that after she had gone to bed on the evening of August 2, 1988, she was awakened by Smith’s presence in her bedroom. Smith warned her, “Don’t make any noise. I’m not going to hurt you.” He then raped her, both vaginally and anally, gagged her, tied her to the bed, and subsequently escaped with her 1982 Toyota truck, a microwave oven, a camera, cash, a printing calculator, a stereo, and a seven coin set of silver mint proof U.S. coins. The victim was medically treated with sutures for vaginal tears that she received as a result of the rape.

I. SPECIFIC INTENT FOR BURGLARY

Smith initially contends that the trial court erred by not granting his motion to dismiss the charge of burglary because the evidence was insufficient to show that he entered an occupiable structure with the specific intent to commit an offense punishable by imprisonment. We disagree.

In determining the sufficiency of the evidence upon appeal, the court not only considers the testimony that tends to support the verdict, but also views the testimony in the light most favorable to the appellee. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). The trial court’s decision is affirmed if there is any substantial evidence to support the verdict. Williams v. State, supra. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other, forcing or inducing the mind to pass beyond a suspicion or conjecture. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987) (citing Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986)). In addition, the law makes no distinction between circumstantial evidence and direct evidence. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

“A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-201 (1987). We have held that a specific criminal intent, which is an essential element of the crime of burglary, cannot be presumed from a mere showing of illegal entry of an occupiable structure. Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (1980). Also, the State must prove each and every element of the offense of burglary beyond a reasonable doubt and cannot shift to the defendant the burden of explaining his illegal entry by merely establishing it. Norton v. State, supra.

However, Smith’s reliance on Norton is misplaced due to the ease with which the circumstances of that case can be distinguished from the facts in this case. At most, the evidence in Norton revealed that the defendant had been standing inside the doorway of an office building which he had illegally entered and from which nothing was taken. There was no evidence other than the defendant’s illegal entry to sustain a conclusion that his entry had been for the purpose of committing an imprisonable offense. Consequently, the court held that the element of criminal intent to commit an imprisonable offense was not established and his conviction of burglary was reversed.

In sharp contrast, the State, in this case, introduced into evidence the victim’s testimony that during the early part of her encounter with Smith he asked her if she had any gold or diamonds and what kind of vehicle she drove. She also testified that Smith then told her that he was “going to make love to her.” The State also introduced into evidence a statement that Smith had given to police authorities after he had signed a written waiver of his rights. In the statement, Smith admitted to entering the victim’s apartment, raping her, and stealing her property.

It is quite evident that the trial court had sufficient evidence from which to determine Smith’s culpable intent for burglary: the entry of another’s occupiable structure for the purpose of committing an offense punishable by imprisonment. In this case, the offenses were theft and rape.

II. IMPEACHMENT OF CREDIBILITY

Smith next alleges that the trial court erred in denying his motion in limine to prohibit the State from impeaching his credibility with a conviction for four counts of burglary when a conviction for two counts of forgery was available for impeachment purposes.

“For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [ 1 ] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness . . . .” A.R.E. Rule 609(a).

We will not consider this issue for it was not properly preserved for review. In Simmons v. State, 278 Ark. 305, 645 S. W.2d 680 (1983), we adopted the rule approved by the majority in United States v. Cook, 608 F.2d 1175 (9th Cir. 1979), where the majority summed up its ruling as follows:

In future cases, to preserve the issue for review, a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609.

In this case, Smith’s statement to the court was markedly inadequate. Smith’s counsel advised the trial court during a pretrial conference that “it’s possible the defendant might testify, and if he testifies his testimony would be basically that he did not commit this burglary and rape.” Needless to say, this meager statement does not satisfy either prong of the Simmons test.

A defendant’s interplay with the trial court concerning the issue of the admissibility of his previous conduct is not uncommon. To avoid such occurrences, we choose, at this time, to extend the Simmons test and we now adopt the doctrine promulgated in Luce v. United States, 469 U.S. 38 (1984), which states that in order to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify. See United States v. Doyle, 771 F.2d 250 (7th Cir. 1985). The doctrine will be applied prospectively only. The rationale supporting our adoption of the doctrine is succinctly addressed by the federal court.

To perform the weighing of the prior conviction’s probative value against its prejudicial effect, as required by Rule 609(a)(1), the reviewing court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify. Any possible harm flowing from a trial court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. Moreover, when the defendant does not testify, the reviewing court has no way of knowing whether the State would have sought so to impeach, and cannot assume that the trial court’s adverse ruling motivated the defendant’s decision not to testify. Even if these difficulties could be surmounted, the reviewing court would still face the question of harmless error. If in limine rulings under Rule 609(a) were reviewable, almost any error would result in automatic reversal, since the reviewing court could not logically term “harmless” an error that presumptively kept the defendant from testifying. Requiring a defendant to testify in order to preserve Rule 609(a) claims enables the reviewing court to determine the impact any erroneous impeachment may have in light of the record as a whole, and tends to discourage making motions to exclude impeachment evidence solely to “plant” reversible error in the event of conviction. Luce, supra.

In effect, we preclude any gamesmanship between the State and the defendant and review a claim of error on this point with a more objective standard.

III. SUPPRESSION OF STATEMENT

For his third point of error, Smith alleges that the trial court erred in overruling his motion to suppress a statement that had been obtained in violation of his right to a prompt first appearance. Rule 8.1 provides that “[a]n arrested person who is not released .by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.” A.R.Cr.P. Rule 8.1.

Smith was arrested on the evening of August 24,1988. The next morning, he was taken to a detective’s office for questioning. At 7:55 a.m., he signed a rights waiver form and then gave a statement to police authorities in which he admitted to raping the victim and stealing her property. At the conclusion of the interview, which lasted approximately forty minutes, Smith was fingerprinted and then taken to the court to be arraigned at a few minutes after 9:00 a.m. The court normally held its arraignments at 9:00 a.m.

Smith argues that these events represent an unnecessary delay in his being brought before a judicial officer and that his statement should be suppressed as a result of this unnecessary delay. There are three requirements for finding a violation of A.R.Cr.P. Rule 8.1: (1) the delay must not be necessary, (2) the evidence sought to be suppressed must be related to the delay, and (3) the evidence must be prejudicial. Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989).

Smith had been informed of his rights and he had voluntarily waived them prior to being questioned. He cannot now claim that his incriminating statement should be suppressed under Rule 8.1 because there has been no showing that the few minutes delay in bringing Smith before a judicial officer was unnecessary.

IV. AMENDED INFORMATION

The fourth point of error Smith presents is that the trial court erred in allowing the State to amend the wording of the information to reflect that four or more felonies would be used to establish habitual offender status.

On January 27, 1988, Smith was charged by amended information with having previously been convicted of four felonies. On January 30, 1988, another amended information was filed in which Smith was charged with having previously been convicted of two felonies. The amended information about which Smith complains was made by the State on February 27, 1989, upon oral motion after the jury had returned a guilty verdict but before Smith had been sentenced.

Under the enhanced sentencing provisions contained in Ark. Code Ann. § 5-4-501 (b) (1987), “[a] defendant who is convicted of a felony committed after June 30, 1983, and who has previously been convicted of four (4) or more felonies or who has been found guilty of four (4) or more felonies, may be sentenced to an extended term of imprisonment. . . .” After the jury had returned with its verdict of guilty, but prior to the punishment phase of the proceedings, the court allowed the State to amend the wording of the amended information to reflect prior convictions of four or more felonies.

Under A.R.Cr.P. Rule 17, the accused is entitled to know before trial the range of possible punishment that he faces, and the information requested must be furnished in sufficient time to permit the beneficial use of it by the defense. Malone v. State, 292 Ark. 243, 729 S.W.2d 167 (1987). However, “[t]he prosecuting attorney or other attorney representing the state, with leave of the court, may amend an indictment as to matters of form . . . .” Ark. Code Ann. § 16-85-407(a) (1987).

In this case, Smith was aware on February 13,1989, two weeks prior to his trial, that a total of six prior felonies would be used for enhanced sentencing purposes. At that time, he argued at a pre-trial hearing for a motion to dismiss the count alleging that he was a habitual offender. At that pretrial hearing, Smith knew that the State intended to present two forgery convictions and four burglary convictions at the sentencing phase of the trial. The court, then, was merely conforming the information to the understanding of the parties when it allowed the State to amend the information.

V. VALUE OF STOLEN PROPERTY

The final point on appeal is Smith’s contention that the trial court erred in permitting the owner of a stolen vehicle to testify as to its purchase price.

“It is well-settled Arkansas law that an owner of personal property is qualified to give an opinion as to its value.” Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984); see Phillips v. Graves, 219 Ark. 806, 245 S.W.2d 394 (1952). Opinion testimony of an owner concerning the value of his property which was stolen is admissible and will constitute substantial evidence if the owner knows the value of his property. Cannon v. State, 265 Ark. 270, 578 S.W.2d 20 (1979).

The victim testified that, in 1985, she had purchased her 1982 Toyota truck for $4350.00. She stated that the truck had been in good condition when she bought it, that she had maintained it in substantially the same condition, and that she considered the value to be the same.

In addition to the 1982 Toyota truck, the victim testified that Smith had stolen a microwave oven, a camera, cash, a printing calculator, a stereo, and a seven coin set of silver mint proof U.S. coins and that these items had a total value of approximately $900.00. If the defendant thought that the victim had no reasonable basis for her opinion, that fact should have been shown by cross-examination, as a foundation for a motion to strike the testimony. Garrett v. Trimune, 254 Ark. 79, 491 S.W.2d 586 (1973) (citing Arkansas State Highway Comm’n v. Stobaugh, 247 Ark. 231, 445 S.W.2d 511 (1969). As no such showing was attempted, the testimony was admissible.

Smith was convicted of Theft of Property, Class B felony. The State had to prove that the value of the property taken from the victim was $2500.00 or more. Ark. Code Ann. § 5-36-103(b)(1)(A) (1987). We find that the testimony presented, when taken as a whole, satisfies this requirement.

Accordingly, we affirm the judgment of the trial court.

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice. David Newbern, Justice, John I. Purtle, Justice,

license: Public Domain

text:
    Dale MORRIS v. STATE of Arkansas
    CR 89-154
    779 S.W.2d 526
    Supreme Court of Arkansas
    Opinion delivered November 6, 1989

      Sullivan, Emmons & Kissee, by: Larry Dean Kissee, and Mark Johnson, for appellant.

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

The appellant was convicted and sentenced for the sale of a controlled substance. We affirm the judgment of conviction.

An undercover agent met the appellant at the Crystal Nickel Club in Cherokee Village. She asked if he had any marijuana to sell. He said yes and asked her to follow him to his car. There he sold her a small baggie of marijuana and said it was “good marijuana.” Laboratory tests showed the baggie did in fact contain marijuana. Appellant pleaded not guilty and, at trial, testified that he did not sell marijuana to the undercover agent. The trial court denied appellant’s requested instruction on entrapment. Appellant assigns this ruling as error.

Ark. Code Ann. § 5-2-209 (1987), provides that entrapment is an affirmative defense which occurs when a law enforcement officer induces the commission of an offense by a normally law-abiding person. The statute further provides: “Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.” We have held that merely affording one the means and opportunity to do that which he is otherwise ready, willing, and able to do does not constitute entrapment. See Fight v. State, 254 Ark. 927, 497 S.W.2d 262 (1973); Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978).

We have considered entrapment an affirmative defense and, when it is invoked, it is necessarily assumed that the act charged was committed. Fight, supra. We have held that when a defendant insists that he did not commit the acts he is charged with, one of the bases of the defense is absent, and he is not entitled to use the defense of entrapment. Robinson v. State, 255 Ark. 893, 503 S.W.2d 883 (1974); Brown v. State, 248 Ark. 561, 453 S.W.2d 50 (1970). Thus, according to our cases, the appellant was not entitled to a jury instruction on entrapment, since he denied any involvement in the crime of selling marijuana to an undercover agent.

However, in Mathews v. United States, 485 U.S. 58 (1988), the Court held:

[E] ven if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.

The underlying rationale of the holding is that a defendant is entitled to an instruction on any defense when there is sufficient evidence for a jury to find in his favor. We are not bound by the Mathews decision as it involves the construction of federal criminal procedure law and does not have a footing in constitutional law. Still, appellant asks us to follow Mathews, rather than our prior cases.

It makes no difference in the case at bar whether we follow Mathews or our prior decisions because there simply was no evidence in this case from which the jury could have found entrapment. Thus, we affirm the point of appeal. However, we can think of at least two situations where our prior cases and Mathews would conflict: (1) when the accused denies committing the offense charged, but the prosecution’s case-in-chief includes substantial evidence of entrapment; and (2) when the accused is charged with conspiracy, but denies being party to the conspiracy, and claims that any overt acts done by him were the result of entrapment. Neither of those cases are before us, and we will save the resolution of the issue until we have such a case.

For his other point of appeal the appellant argues that the trial court erred in refusing to grant a mistrial because of a question asked on cross-examination of a character witness. The trial court did not err. On direct examination the witness testified as follows:

Well, I’ve never heard anything against Dale Morris since I can remember, I mean, and I’ve never heard of him being in any trouble except the present trouble that he’s in now. All I know about him, he was always a pretty hard-working fellow and took care of his own business pretty well.

On cross-examination the prosecutor asked, “You haven’t heard about his DWI’s?” The witness responded that he had not, and appellant objected and moved for a mistrial.

A.R.E. Rule 404(a) deals with the basic question of whether character evidence should be admitted. Under it, an accused may introduce evidence of good character, just as the appellant in this case did. Once the admissibility of character evidence is established, Rule 405 provides the method of proof, as follows in pertinent part: “[P]roof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.”

The rule clearly provides that in cross-examining a defendant’s character witness, it is permissible to inquire into the witness’s knowledge of specific instances of conduct. Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986). Such cross-examination tests the witness’s knowledge of the defendant’s reputation and that, in turn, may go to the weight to be given his opinion.

Affirmed.

Newbern, J., concurs.

Purtle, J., dissents.

David Newbern, Justice,

concurring. The result reached by the court is correct because Morris failed to present evidence sufficient to establish a prima facie case of entrapment.

The court’s opinion that the defense of entrapment is not available to a defendant who does not admit having committed the offense is based on Robinson v. State, 255 Ark. 893, 503 S.W.2d 883 (1974), and Brown v. State, 248 Ark. 561, 453 S.W. 2d 50(1970).The Brown case was apparently the first one in which this court considered the question whether a defense of entrapment was necessarily inconsistent with a defense denying the facts charged. In the Brown case, the court relied on Rodriguez v. United States, 227 F.2d 912 (5th Cir. 1955), which was said to be “decidedly the majority rule.”

Because of Mathews v. United States, 485 U.S. 58 (1988), the Rodriguez case would not be decided today as it was in 1955. Although I agree with the statement in the majority opinion that we are not bound by the Mathews decision, I believe there is logic underlying the Supreme Court’s opinion which is correct and which convinces me our earlier cases were wrongly decided.

If a defendant denies having been at the scene of the crime, for example, but is identified as having been there by a witness, a claim of entrapment is not inconsistent with the defendant’s claim that the witness has misidentified him or her. If the government entrapped whomever committed the crime, the defendant should be allowed entrapment as a defense even though the jury may believe the identifying witness. The jury may disbelieve the defendant’s evidence that he or she was not present when the crime was committed but it may, without any inconsistency whatever, believe the defendant’s independent evidence of entrapment. What if strong evidence of entrapment is available to such a defendant? Should the defendant have to choose between presenting evidence of alibi and evidence of entrapment? The answer is no because in such a situation, the defendant is not presenting two mutually exclusive lines of evidence.

In the Robinson case the defendant presented a witness who testified he saw Robinson give powdered aspirin to an undercover officer. The state presented evidence that it was cocaine. The court concluded the defense of entrapment was inconsistent with the defendant’s evidence. Whether the jury believed the substance transferred from the defendant to the officer was cocaine or aspirin is unrelated to the defense of entrapment.

While it may sound “right” to say the entrapment defense necessarily assumes “the act” was committed, the statement cannot stand close scrutiny. What is meant by “the act?” Does is mean necessarily by the defendant? As in the Robinson case, may it not mean an appearance of “the act?”

Finally, I must ask what harm it would do in these cases to permit the instruction. As the court’s opinion correctly points out, the defense is an affirmative one, and the burden of proof is wholly on the accused in this state. McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989). In my view, if the accused is able to meet that burden by establishing a prima facie case of entrapment, then the instruction should be given regardless of other defenses the accused may have presented.

John I. Purtle, Justice,

dissenting. This court ought not voluntarily and knowingly refuse to adhere to the decisions of the United States Supreme Court. In a quite similar case, Mathews v. United States, 485 U.S. 58 (1988), the United States Supreme Court held:

[E]ven if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.

While Mathews concerns the construction of federal criminal procedure rules, and our prior decisions dealing with entrapment concern the Arkansas criminal procedure rules and statutes, the fundamental issue remains the same. In Arkansas, entrapment is an affirmative defense which must be proven by the accused. Our cases hold that, in order to present the defense of entrapment, the defendant must admit that he committed the criminal act charged. In light of the implications of Mathews, I am of the opinion that a constitutional question of due process of law is presented in the present case.

Law enforcement officers ought not to be paid to go about actively encouraging people to commit crimes. That, unfortunately, is exactly what happens in entrapment cases. Entrapment by law-enforcement officials is a cancerous growth which is spreading rapidly in this country. Instead of trying to prevent crimes, some officers are paid to induce people to commit crimes under the theory that it is not entrapment to lead them to commit crimes if they were predisposed to do so. Naturally, one must conclude that, had a police officer not led an individual down the primrose path, no offense would have been committed. For a general discussion of my views on entrapment, see McCaslin v. State, 298 Ark. at 340, 767 S.W.2d at 309 (1989) (Purtle, J., dissenting) and State v. White, 298 Ark. at 169, 765 S.W.2d at 953 (1989) (Purtle, J., dissenting). I am still firmly of the opinion that police officers ought to be used to prevent crimes rather than to induce the commission of crimes.

Entrapment is an affirmative defense. Ark. Code Ann. §5-2-209(a) (1987). In paragraph (b), entrapment is said to occur “when a law enforcement officer or any person acting in cooperation with him, induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense.” Until this offense was allegedly committed, there was no record or indication that the appellant had ever violated any law. That certainly constitutes substantial evidence that he was a law-abiding person.

The “undercover” agent in this case admitted that “the crime is not committed until it’s solicited by me.” According to the agent’s own testimony, after she initiated a conversation with the appellant, they went out to the parking lot where she found in the glove compartment of the appellant’s car a baggie containing about’one-tenth of an ounce of marijuana weighing approximately 4.8. grams. This amount was certainly far less than that required to create a presumption of possession with intent to deliver. This “undercover” agent induced the appellant to go with her to the parking lot and persuaded him to sell her about one-tenth of an ounce of marijuana for $10.00. For his yielding to temptation, he was sentenced to ten years and fined $25,000.

The tone of this proceeding was set in the information when it charged Dale Eugene Morris, “a/k/a Joe Dale Morris,” with the crime of delivery of a controlled substance. This usage creates the impression that the appellant was employing an alias, leading to the logical conclusion that it was for the purpose of evading the law. However, the facts reveal that the appellant had never been in any trouble before and had not, in fact, used two different names. The “undercover” agent simply had supplied the two names from her notes. The state’s tactics aimed at damning the appellant’s character were further refined when the state brought forth information regarding the appellant’s subsequent charges of DWI during the cross-examination of a character witness. More will be said about this tactic later.

In Mathews v. United States, supra, the accused denied that he had participated in the act forming the basis for the criminal charge he was facing. The trial court denied the motion to give an entrapment instruction or to allow such a defense. The District Court denied the appellant the defense of entrapment because he refused to admit the elements of the crime charged. The United States Supreme Court, by Chief Justice Rehnquist, reversed and held that “even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.”

In the present case, the state presented evidence from which the jury would have found that the crime was a result of entrapment. Certainly, under such circumstances, the appellant should not have been denied the instruction. It seems to me that fundamental fairness and basic principles of criminal justice require that the accused be allowed to have an instruction given on a matter which has arisen during the course of the trial. This is so even though the accused may have relied upon another defense.

I return to the issue of the appellant being asked about subsequent criminal acts on cross-examination. This maneuver seems to have been planned by the state as part of its effort to portray the appellant in the worst possible light. The appellant’s character witness was asked if the appellant was of good moral character; he replied that he did not know of the appellant “being in any trouble.” However, it was the prosecutor who asked the witness if he had made the statement, “I never heard of him being in trouble.” Thus, the stage was set to ask the next question: “You haven’t heard about his DWIs?” Apparently, the appellant had been charged with two offenses of DWI after he was accused of having sold the one-tenth ounce of marijuana.

The state’s conduct appears to be a clear violation of the long-standing “bad character” rule set forth in Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). Further, the state’s resort to this strategem is a manifest violation of Rule 404(b) of the Arkansas Rules of Evidence, which provides:

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

Unrelated offenses or acts of misconduct are not relevant or admissible in an independent criminal trial. To allow such evidence would be to countenance a blow “to the very heart of fairness and justice in criminal trials.” Alford v. State, supra. Independent acts are, of course, sometimes admissible for purposes such as proof of motive, intent, plan, and mistake or accident, as contemplated by Rule 404(b). No argument has been made that the DWIs were related in any way to the modus operandi of the appellant.

Clearly, the sole purpose of the state in introducing evidence of these acts was to show that the appellant, because of his bad character in other respects, was guilty of the crime for which he was being tried. A number of cases treat similar instances of guilt, so to speak, by association. Set Henderson v. State, 291 Ark. 138, 722 S.W.2d 842 (1987); Lackey v. State, 283 Ark. 150, 671 S.W.2d 757 (1984); Rios v. State, 262 Ark. 407, 557 S.W.2d 198 (1977).

I cannot agree with the state’s argument that the appellant’s counsel opened the door to the character questions concerning other “bad acts.” a trial should never be conceived as a contest between the attorneys; rather, it should strive toward discerning the truth and obtaining justice.

The case should be reversed and remanded for a new trial because the state introduced irrelevant independent “bad acts” to show that the appellant was guilty of the crime charged, and because the trial court refused to give an instruction on entrapment. I cannot fault the trial court on the refusal to give the instruction because he was merely following precedent. We could, however, at least issue a caveat that such instructions may be proper even when the affirmative defense of entrapment has not been raised prior to trial.


author: Steele Hays, Justice.

text:
    SHELTER MUTUAL INSURANCE CO. v. Amelee SMITH and Ruth Smith, Husband and Wife, and Kathy Lowell
    89-200
    779 S.W.2d 149
    Supreme Court of Arkansas
    Opinion delivered November 6, 1989

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellant.

      Mashburn & Taylor, by: W.H. Taylor, and Martin Law Firm, P.A., by: Thomas A. Martin, for appellees.
   Steele Hays, Justice.

This appeal is taken from a jury verdict finding that horse racing activities by Amelee and Ruth Smith, appellees, was not a “business pursuit” under a farm owners policy of insurance issued by the appellant, Shelter Mutual Insurance Company. The question for review is whether the verdict is supported by substantial evidence.

Amelee and Ruth Smith live on 160 acres of land in southern Missouri where they maintain several thoroughbred race horses. Mrs. Smith is employed; Mr. Smith is retired with disability income. At some time prior to 1983 an agent for Shelter reviewed their circumstances and recommended Shelter’s farm owners policy, which they accepted. In 1983 during a racing meet at the Carroll County Fair the Smiths’ race horse, “Charger,” veered from the track and injured Kathy Lowell. When Ms. Lowell made claim on the Smiths they looked to Shelter to defend under their policy. Shelter filed this declaratory judgment action against the Smiths and Kathy Lowell, alleging that the Smiths’ horse racing was a “business pursuit” and as such was excluded from coverage under the policy. Shelter and Lowell entered into a side agreement that if coverage was upheld she would receive $52,500 from Shelter. The case was submitted to the jury under a general verdict form and the jury found for the defendants. The trial court allowed an attorneys fee but refused to allow a twelve percent penalty. Shelter has appealed and the Smiths have cross-appealed.

The contention that the verdict is not supported by substantial evidence is, we think, tantamount to arguing that the horse racing activities of the Smiths were, as a matter of law, a business pursuit as that term is defined in the policy. If that were so, the trial court would have been obliged to grant a motion for a directed verdict at the close of the case. Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 783 (1986); Farm Bureau Mutual Ins. Co. v. Parks, 266 Ark. 454, 585 S.W.2d 936 (1979). However, the evidence was such that reasonable minds might well have differed and, that being so, the issue was one for the jury to decide. Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986); Williams v. Curtis, 256 Ark. 237, 506 S.W.2d 563 (1974).

The Smiths testified that the horse racing was not conducted as a business, but as a hobby, simply for their own enjoyment. Of course, those subjective conclusions were not binding on the jury, but where intent is a material consideration, as Shelter tacitly concedes, that may be sufficient to sustain a verdict. We need not rely on that alone, however, because there was objective evidence to support either position: The Smiths’ income tax returns were consistent with the view that the activity was a business, albeit an unprofitable one; that, too, was the opinion of their present accountant; but there was offsetting proof that H & R Block, which previously prepared their returns, regarded the operation as a nonbusiness venture and refused to prepare returns based on such a business concept. But while the manner by which the Smiths reported the activities for tax purposes is plainly pertinent, it is not conclusive of the issue. Without restating the testimony in detail, there was proof from which the jury could infer that horse racing was for the Smiths a pastime, primarily for their own enjoyment, and not a business pursuit.

There is yet another basis on which we must affirm. The jury was instructed that Shelter had the burden of proving that the injury to Ms. Lowell was excluded in the policy of insurance, that it must consider the language of the policy in its entirety in determining the intent of the parties, must strictly interpret exclusions to insurance coverage and must resolve all reasonable doubts in favor of the Smiths. It follows that the jury may have determined that Shelter did not meet that burden, or concluded that the language of the policy was ambiguous and, in accordance with the instructions, resolved the doubt against the insurer.

The trial court awarded an attorney’s fee to the Smiths but refused to impose a penalty of twelve percent. The Smiths have cross-appealed from that refusal. The trial court was correct. The Smiths counterclaimed for the twelve percent penalty under Ark. Code Ann. § 23-79-208 (1987) which states:

(a) In all cases where loss occurs and the cargo, fire, marine, casualty, fidelity, surety, cyclone, tornado, life, health, accident, medical, hospital, or surgical benefit insurance company. . . liable therefore shall fail to pay the losses within the time specified in the policy, after demand made therefore, the person, firm, corporation or association shall be liable to the holder of the policy or his assigns, in addition to the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorneys’ fees for the prosecution and collection of the loss.

We have interpreted this statute to require the insured to have suffered a loss, and to have recovered a money judgment. Cato v. Ark. Mun. League Mun. Health Benefit Fund, 285 Ark. 419, 688 S.W.2d 720 (1985); Miller’s Mutual Ins. Co. v. Keith Smith Co., 284 Ark. 124, 680 S.W.2d 102(1984); Firemen’s Fund Ins. Co.v. Clark, 253 Ark. 1025, 490 S.W.2d 447 (1973).

Shelter argues that Ark. Code Ann. § 23-79-208 (1987) is inapplicable for declaratory judgments and that the controlling statute is Ark. Code Ann. § 23-79-209 (1987) which states:

(a) In all suits in which the judgment or decree of a court is against a life, fire, health, accident, or liability insurance company . . . in a suit for a declaratory judgment under the policy, the company shall also be liable to pay the holder of the policy all reasonable attorneys’ fees for the defense or prosecution of the suit, as the case may be.

This statute specifically applies to declaratory judgment actions, and excludes the allowance of a penalty although providing for an award of attorneys fees.

The Smiths suggest that the cases of Home Insurance Company v. Crawford, 251 Ark. 843, 475 S.W.2d 889 (1972) and Mid-South Insurance Co. v. Dellinger, 239 Ark. 169, 388 S.W.2d 6 (1965) conflict as to whether Ark. Code Ann. § 23-79-209 (1987) allows for a twelve percent penalty. They rely on Home Insurance, and maintain it overrules Dellinger. However, we do not find these cases to be inconsistent.

In Mid-South Ins. Co. v. Dellinger, 239 Ark. 169, 388 S.W.2d 6 (1965), Mid-South, which had issued an automobile insurance policy to Dellinger, brought a declaratory judgment action to determine if it must defend Dellinger in a pending personal injury action. The trial court found that Mid-South was obligated to defend and Dellinger then counterclaimed for the statutory penalty and attorney’s fee as provided in Ark. Stat. Ann. § 66-3238 [Ark. Code Ann. § 23-79-208 (1987)], since Dellinger had to defend Mid-South’s declaratory judgment action. We affirmed and noted that, “while an attorney’s fee may be allowed in a case of this nature, Ark. Stat. Ann. § 66-3239 [now Ark. Code Ann. § 23-79-209 (1987)], nevertheless, we think justice is fully served by denying an attorney fee in this particular case.” Mid-South has then been interpreted to stand for the proposition that the provisions of Ark. Stat. Ann. § 66-3238 [Ark. Code Ann. § 23-79-208 (1987)] do not extend to declaratory judgment actions. However, our language simply indicates that Ark. Stat. Ann. § 66-3239 provides for an attorneys fee, but no penalty and that under the particular circumstances of that case, the denial of an attorney’s fee was not error.

In Home Insurance Company v. Crawford, 251 Ark. 843, 475 S.W.2d 889 (1972), Home Insurance issued a fire policy to the Penningtons with a mortgage clause in favor of First Federal. When the house sold, the insurance policy was to be transferred to Ms. Crawford, but before the transfer was completed, the house burned. Home Insurance denied liability and paid First Federal, taking an assignment of the mortgage. Home Insurance then instituted a mortgage foreclosure and declaratory judgment action to determine liability to Ms. Crawford. We held that the trial court did not err in allowing a twelve percent penalty under Ark. Code Ann. § 23-79-208 (1987) (formerly, Ark. Stat. Ann. § 66-3238) on the counterclaim filed by Ms. Crawford. We said, “That statute [Ark. Code Ann. § 23-79-208 (1987)] provides for the payment of the penalty where a loss has occurred and the insurer fails to pay after demand has been made therefor. We can find nothing in Ark. Stat. Ann. § 66-3239 that prevents the allowance of the penalty upon a counterclaim for a loss.” (Our emphasis.) Although the form of the suit in Home Insurance was that of a declaratory judgment, because a money loss did occur and Ms. Crawford satisfied the requirements of Ark. Code Ann. § 23-79- 208 (1987), she was allowed to recover both attorney’s fees and a penalty. However, Home Insurance did not argue that Ark. Code Ann. § 23-79-209 (1987) allows the recovery of a twelve percent penalty, as this is directly opposed to the statutory language. Rather, Home Insurance merely allowed the penalty since the requirements of Ark. Code Ann. § 23-79-208 (1987) were satisfied and because there was nothing in Ark. Code Ann. § 23-79-209 (1987) prohibiting the penalty.

Here, no loss was suffered by the Smiths and no money judgment was recovered, and thus the Smiths failed to satisfy the requirements of Ark. Code Ann. § 23-79-208 (1987). While the Smiths were entitled to an attorney’s fee under Ark. Code Ann. § 23-79-209 (1987), they were not entitled to a twelve percent penalty under Ark. Code Ann. § 23-79-208 (1987). In this declaratory judgment action, the awarding of attorneys fees is proper only under Ark. Code Ann. § 23-79-209 (1987), and this statutory provision, conspicuously by the absence of a penalty provision, fails to provide for the twelve percent penalty. Therefore, the trial judge did not err in refusing to assess the twelve percent penalty.

Affirmed on appeal and cross-appeal.


author: David Newbern, Justice.

text:
    Peggie PEEK v. William C. BRICKEY, et al.
    89-240
    779 S.W.2d 152
    Supreme Court of Arkansas
    Opinion delivered November 6, 1989
    [Rehearing denied December 11, 1989.]

      Paul D. Capps and Sherry S. Means, for appellant.

      H. Oscar Hirby, for appellee.
   David Newbern, Justice.

The chancery court awarded a judgment of foreclosure to the appellant, Peggie Peek, who was the mortgagee. She appeals because the court refused to award interest on the mortgage debt which was evidenced by an installment note for $35,000. The principal appellees are William C. Brickey and his wife, Barbara Brickey, who have cross-appealed the chancellor’s holding against their contentions of payment or lack of consideration. We hold that the chancellor erred in failing to award interest on the mortgage debt but that his findings on the issues of payment and lack of consideration are not clearly erroneous. Thus, we reverse on appeal and affirm on cross-appeal.

In 1963, William C. Brickey was president of Republic Casualty Insurance Company which was in financial difficulty. On September 3, 1963, Mr. Brickey borrowed $17,500 from Marshal and Lucille Purvis and $7,500 from the Purvis’s daughter, Peggie Peek. As security for these loans, Mr. Brickey delivered to the Purvises and Ms. Peek shares of stock in Republic.

On September 26,1963, Mr. Brickey executed a promissory note to Ms. Peek for $10,000 in exchange for checks from her totaling that amount. Ms. Peek thereafter acquired the Purvis’s interest in the pledged shares of stock.

In 1966, Mr. Brickey asked Ms. Peek to release the shares of stock so that he could pledge them as collateral for a loan from a Ft. Smith lender to Republic. She did so in exchange for a promissory note executed by William C. Brickey and Mariannes Brickey, who was then married to Mr. Brickey, secured by a second mortgage on the Brickeys’ home.

In 1968 a foreclosure action was brought by Pulaski Federal Savings and Loan Co., holder of the first mortgage on the Brickey home. Peggie Peek was named a party, and she cross-claimed for foreclosure of the second mortgage. Apparently because Mr. Brickey paid Pulaski Federal the money owed at that time, the foreclosure suit was not pursued. Neither was it dismissed until 1978 when the court found it had not been prosecuted and dismissed it pursuant to a local rule without notice to Ms. Peek.

This court reversed the dismissal and reinstated the suit, holding that Ms. Peek was not responsible for the failure to pursue the foreclosure, and the dismissal was thus “voidable.”

At trial, Mr. Brickey and his current spouse, Barbara Brickey, contended he did not receive consideration in exchange for the $35,000 note in favor of Ms. Peek. His claim was that Ms. Peek’s husband, Noah Peek, Jr., who had been a member of Republic’s board of directors, used the borrowed money to obtain $50,000 worth of bonds which were “put up with the [insurance] commissioner,” and that Noah Peek, Jr., presumably later, took the money and used it personally. He also presented testimony and records showing that Republic had paid Ms. Peek over $40,000 which he said had been in payment for the loan.

Ms. Peek presented a purported sworn affidavit, dated December 9,1968, bearing the signature “William C. Brickey” in which the transactions between her and Mr. Brickey were described. Noah Peek Jr., testified that the affidavit was executed by Mr. Brickey in the office of attorney Thorpe Thomas and that he saw Mr. Brickey sign it. Mr. Thomas also testified that the affidavit was executed by Mr. Brickey in his office.

The affidavit, which was accepted as an exhibit, states clearly the circumstances under which the note and mortgage were given to Ms. Peek. It mentions nothing about payment or about lack of consideration. Mr. Brickey testified that his signature on the affidavit was a forgery and that Mr. Peek had burglarized his home and taken away records which would have shown that the obligation to Ms. Peek had been paid. Mr. Peek denied having done so. On cross-examination, Mr. Brickey was reminded that he acknowledged his signature on the affidavit in an earlier deposition.

Apparently there were numerous business transactions among the Brickeys, the Peeks, and Republic. Mr. Brickey testified about jewelry, automobiles, and horses taken from him by Noah Peek, Jr., and about a $258,000 note in favor of the Peeks which was to “cover everything.” On cross-examination, however, he could not show any notation on that note or any other documentation showing satisfaction of the note and mortgage at issue here.

At the conclusion of the trial, the chancellor ruled that if the debt were not paid within 10 days, the property would be sold, subject to the interest of the first mortgagee which is now Savers Federal Savings, the successor to Pulaski Federal. The chancellor awarded a judgment on the note for $35,000 plus costs, but he declined to award the 8% interest specified in the note. The court’s order recites, “the equities in these circumstances should not allow interest” on the note and mortgage.

1. Payment and lack of consideration

Whether there had been payment of the note or lack of consideration given for it were clearly issues of fact. We will not reverse a chancellor’s factual decisions unless we are shown that they are clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987); Jones v. Ragland, 293 Ark. 320, 737 S.W.2d 641 (1987).

Arkansas R. Civ. P. 8(c) makes payment and failure of consideration affirmative defenses for pleading purposes, and, in situations where there are complicated business transactions between the maker and payee of a note, we have held that the burden of proving payment which was or should have been credited to the maker is upon the maker of the note. Miles v. Teague, 246 Ark. 1288, 441 S.W.2d 799 (1969); Hill v. Green, 127 Ark. 406, 192 S. W. 209 (1917). Peggie Peek testified she had not been paid the $35,000 she was owed on the note, and the chancellor was under no obligation to believe evidence to the contrary.

With respect to failure of consideration, Mr. Brickey admitted in testimony that he received money from the Purvises and Ms. Peek in 1963 in exchange for stock in Republic and that it was at his behest that Ms. Peek, having acquired the Purvis’s interest in the Republic Stock they held as security, relinquished it in exchange for the note and the second mortgage on the home Mr. Brickey owned with his then spouse. The note and the second mortgage were thus given by Mr. Brickey and his spouse in exchange for another obligation, the pledge of stock, which clearly had been made in exchange for consideration. That there was no failure of consideration from Ms. Peek seems obvious.

Because we cannot say the chancellor’s findings of fact were clearly erroneous, we affirm on cross-appeal.

2. Interest

The chancellor cited nothing in support of his authority to deny interest on the note from the Brickeys to Ms. Peek, and we find no statute or case law which would permit him to do so. The note clearly provided for payment of 8 % per annum interest on the principal sum.

It is true that a chancellor may deny interest if the obligation is a purely equitable one. See Keenan v. Crain, 220 Ark. 199, 246 S.W.2d 730 (1952). In this case, however, the obligation was not purely equitable but was a legal obligation based upon a promissory note.

The Brickeys cite two cases for the proposition that Ms. Peek is not entitled to interest because of the delay in pursuing her rights. In Lyle v. Latourette, 209 Ark. 721, 192 S.W.2d 521 (1946), we held that no interest was due on a debt arising from a lien until the lien claim was filed. The Brickeys have cited the case for this language, “when interest once begins to run on a claim it continues to run pending decision by the courts, if the delay is not the fault of either party.” The other case cited is H.B. Deal & Co., Inc. v. Bolding, 225 Ark. 579, 283 S.W.2d 855 (1955),inwhichit was held that interest would run on a claim for overtime wages because the record did not warrant a finding of fault on the part of the claimants.

Neither of these cases supports the authority of a chancellor to ignore the rate of interest specified in a promissory note because of enforcement delay attributable to the payee. The argument of the Brickeys on this point is, in part, that, the chancellor had “doubts” about whether Ms. Peek ever loaned them the money. Either the note was valid or it was not. Having concluded the note was valid and enforceable, it was not within the chancellor’s power to deny the interest on the ground that he had “doubts,” and we doubt that he did so.

While it is not called “laches,” the remainder of the Brickeys’ argument on this point is that Ms. Peek delayed too long in pursuing the foreclosure action. It is argued that Mr. Brickey changed his position in detrimental reliance over the years on Ms. Peek’s failure to act. Even if laches applied, we could not agree with the argument because it does not say how Mr. Brickey’s position was changed. Nor can we credit other aspects of this argument, such as, that the records of Republic are no longer available, “they being turned over to the Arkansas Insurance Department many years earlier.” Nothing in the record before us shows that the records, even if they might be relevant, are unavailable.

As we explained in Colclasure v. Kansas City Life Ins. Co., 290 Ark. 585, 720 S.W.2d 916, cert. den. 481 U.S. 1069 (1986), a foreclosure action is equitable in nature, but the chancellor may, under the clean-up doctrine, award a legal money judgment along with the foreclosure. Although the chancery court is empowered to render a judgment on the underlying debt in a foreclosure action by statute. Ark. Code Ann. § 18-49-103(c) (1987), we have recognized that the jurisdiction to render a personal judgment for debt is only incidental to the jurisdiction to foreclose. Husband v. Crockett, 195 Ark. 1031, 115 S.W.2d 882 (1938). The award of interest in this case should have been made a part of the chancellor’s award of an in personam money judgment for $35,000 plus costs in favor of Ms. Peek, as such a judgment is a legal rather than equitable matter. “The equitable doctrine of laches is not applied in actions for damages, for accounting, for the recovery of money or property fraudulently obtained, and the like.” S. Symons, Pomeroy’s Equity Jurisprudence, § 917, p. 600 (5th Ed. 1941).

We affirm the chancellor’s action on cross-appeal and reverse on appeal and remand for orders consistent with this opinion.


author: Tom Glaze, Justice.

text:
    William Frank PARKER v. STATE of Arkansas
    CR 88-95
    779 S.W.2d 156
    Supreme Court of Arkansas
    Opinion delivered November 6, 1989

      Howard L. Slinkard, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is the second time the Parker case has been before this court. On November 12, 1985, Parker was convicted of two counts of capital felony murder, two counts of attempted first degree murder, two counts of burglary, kidnapping and attempted capital murder. He received the death penalty for two counts of capital felony murder for causing the deaths of James and Sandra Warren in the course and furtherance of a burglary. This court reversed the capital murder convictions finding that the Warrens’ murders were not caused in the course of or furtherance of a burglary, but that Parker went into the Warrens’ home for one purpose — to murder them. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). Only the capital murder convictions were reversed, the other convictions were affirmed, and the capital murder convictions were severed.

On retrial, the appellant was charged pursuant to Ark. Code Ann. § 5-10-101(a)(4) (Supp. 1987) — a person commits capital murder if with premeditated and deliberated purpose of causing the death of any person, he causes the death of two (2) or more persons in the course of the same criminal episode. Acting pro se with the assistance of two attorneys present at trial, the appellant was again convicted of capital murder and given the death penalty. The appellant argues eight points for reversal. We find no merit in any of them, therefore we affirm.

Appellant first argues that our reversal of his . first capital felony charge amounted to a finding that the prosecution failed to prove an essential element of the offense, viz., that the deaths occurred in the course of a burglary. As a consequence, he claims that, under the rationale of Burks v. United States, 437 U.S. 1 (1978), the double jeopardy clause precluded a second trial because the conviction was effectively reversed based upon the state’s failure to produce sufficient evidence to sustain a guilty verdict.

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. Burks, 437 U.S. 1. However, there has been a distinction made between trial error and evidentiary insufficiency; trial error does not bar retrial under double jeopardy. Id. Appellant here mistakes evidentiary insufficiency with trial error. See Sellers v. State, 300 Ark. 280, 778 S. W.2d 603 (1989); see also Montana v. Hall, 481 U.S. 400 (1987). Trial error does not constitute a decision to the effect that the government has failed to prove its case and implies nothing with respect to guilt or innocence of the defendant. Harris v. State, 284 Ark. 247,681 S.W.2d 334 (1984) (quoting Burks v. United States, 437 U.S. 1, 15). Here, the trial error was in charging and trying Parker under the wrong capital murder provision. In the first Parker case, we stated that Parker could have been charged under Ark. Code Ann. § 5-10-101(a)(4) — the capital murder provision with which the state charged and convicted him at his second trial. When holding Parker had been convicted under an improper provision, we never suggested insufficient evidence existed to prove he committed capital murder if charged and convicted under the correct law.

At the second trial, appellant was correctly charged with the premeditated and deliberated purpose of causing the death of any person, he causes the death of two or more persons in the course of the same criminal episode. In our earlier Parker decision, we set out the facts surrounding the murders committed by the appellant. Suffice it to say, the state proved appellant shot at Cindy Warren but missed. Then, he chased Cindy’s father into the Warren House where appellant shot and killed Cindy’s parents, Mr. Warren and his wife, Sandra. In sum, the state at the second trial corrected its error by charging and convicting the appellant under capital murder provision § 5-10-101 (a)(4), and the evidence was unquestionably sufficient to sustain the jury’s guilty verdict under that charge.

In his second issue, appellant urges the trial court erred in allowing the state to refer to events which occurred after the murders of Mr. Warren and his wife. Immediately after killing the Warrens, appellant located his former wife, Pam Warren, at her residence, kidnapped her and later shot her and a policeman at the police station where he kept Pam hostage. Appellant was convicted of these crimes committed subsequent to the killing of the Warrens and those convictions were affirmed in the first Parker appeal. At the second trial, appellant argued that those subsequent events (crimes) should have been excluded under A.R.E. Rules 403 and 404(b). The trial court admitted the state’s evidence, but in doing so, admonished the jury that it could consider the evidence only for determining whether “the appellant had a state of mind sufficient to constitute the crime with which he was charged,” viz., the capital murders of the Warrens. The trial court was correct.

Rule 404(b) provides that the evidence of other crimes, wrongs, or acts may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In the present case, the theory of the state’s case was that the appellant planned to kill the entire Warren family. The state developed its case to show the appellant’s intent to kill Mr. and Mrs. Warren was precipitated because of his domestic troubles with the Warrens’ daughter, Pam. The record reveals appellant had married Pam and the relationship was beset with troubles related to his involvement in drugs. The state showed that Pam had divorced the appellant, and as a consequence, the appellant ended up terrorizing not only Pam but her sister, Cindy, and her parents, who had favored Pam’s separation from the appellant. The state’s evidence painted a picture of a series of terroristic acts and threats towards each member of the Warren family. Immediately after the appellant killed Mr. and Mrs. Warren and his attempt to do the same to Cindy, the appellant went to where Pam lived and forced her to go with him to the police station, where he shot a police officer. The testimony reveals he held Pam as a hostage and requested that Cindy Warren be brought to him. During this time, he had also shot Pam in the abdomen and told her that he had killed her parents. When he was arrested, the appellant possessed the same automatic gun used in his shooting of the Warrens and he wore the same army camouflage or combat clothing he had changed into before going to the Warrens to kill them.

These events following the killing of the Warrens were extremely probative in that they revealed not only that the appellant killed the Warrens but also that he had planned to kill the entire Warren family and that he induced the hostage situation in an effort to get both Pam and Cindy at the police station so he could consummate his plan. We also believe the events following the Warrens’ killings were admissible because the entire sequence of events was such an inseparable whole that the state was entitled to prove the entire criminal episode. See Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981); Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977); Harris v. State, 239 Ark. 771, 394 S.W.2d 135 (1965).

In his third point for reversal, appellant cites Ake v. Oklahoma, 470 U.S. 68 (1985) and argues he was denied the assistance of a psychiatrist in preparing his defense. In Ake, the Court held that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the state must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense. Appellant made no such demonstration in the present case.

At his first trial, appellant raised mental disease or defect as an affirmative defense, but he failed to do so at his second trial. On a number of occasions, the appellant, acting pro se, stated that he had no intention of raising a sanity defense but that he thought “duress is a form of mental illness.” He later added, “Is not duress a mitigating circumstance, under the influence?” While the record reads in a somewhat disjointed fashion (largely due to the manner in which the appellant represented himself), it is clear that the appellant intended to raise his mental condition as a mitigating factor at the penalty phase of his trial; towards that end, he presented Dr. Oglesby, a psychiatrist with the Department of Correction, as a witness. Consistent with his earlier declaration that he did not intend to raise mental disease or defect as a defense during the guilt phase of his trial, he called Dr. Oglesby as a witness only at the penalty phase. From our careful examination of the record, we confirm the trial court’s finding that the appellant failed to raise the sanity defense or to show that his sanity at the time of the offense was a significant factor at trial. Because appellant made no effort to offer a sanity defense at the guilt phase of the trial and he was permitted to offer considerable psychiatric testimony through Dr. Oglesby bearing on mitigating circumstances, appellant simply fails to show any prejudicial error.

Appellant’s next issue is wholly without merit. He argues the trial court erred in permitting the prosecutor to ask the following question of Officer Sydoriak:

Q When, when you told him that the Warrens were in the hospital, did that seem to fool him in any way?
A No, sir.
Q Did he at any time indicate any, I guess indicate to you that he was unsure as to whether the Warrens were actually dead or alive?
A No, sir. He was sure that they were dead.
Q Confident of that?
A Yes, sir. (Emphasis added.)

Appellant characterizes the foregoing question as a leading one which was designed to inflame the jury’s passion. He offers no explanation concerning how he was prejudiced by the question, nor do we read the question as a leading one. Instead, the question, “Confident of that?” appears to be nothing more than a reaffirmation of the officer’s prior remark that “He [appellant] was sure that they were dead.” In any event, reversible error may not be predicated upon a ruling admitting evidence unless a substantial right is affected. A.R.E. Rule 103(a); Daniels v. State, 293 Ark. 422, 739 S.W.2d 135 (1987). Clearly, no substantial right was shown to have been affected here even if we were to hold that a proper objection has been offered by the appellant.

Appellant’s fifth issue suggests that he was prejudiced by the placement of a plexiglass screen around the witness stand during the entire trial. Presumably, the screen was used because the appellant was acting as his own attorney, and it separated him from the witnesses during his examination of them. Appellant cites A.R.Cr.P. Rule 33.1 which provides that defendants and witnesses shall not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. See also Johnson v. State, 261 Ark. 183, 546 S.W.2d 719 (1977) (where this court held that it cannot presume prejudice from the fact that the defendant was brought into the courtroom in handcuffs). Of course, Rule 33.1 concerns physical restraints of a defendant, such as handcuffs; here the screen was not used to restrain the appellant but merely to protect the witnesses. Two state witnesses, Pam and Cindy Warren, were the objects of the appellant’s prior violence, and in acting as his own attorney, appellant was placed in a capacity or role that he could approach witnesses. No doubt, the trial judge’s concern for these two witnesses’ safety was legitimate. We find nothing in the record that reflects the appellant was prejudiced by the screen device, and in fact, all of the jurors that were voir dired on the subject stated that the screen would have no effect on his or her deliberations.

Regarding appellant’s sixth point, he acknowledges that this court has held the state, in proving aggravating circumstances, can proceed under Ark. Code Ann. § 5-4-604(3) (1987) by establishing certain prior felonies without showing those felonies have been reduced to convictions. See Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983). He urges that we overrule the Miller decision and hold § 5-4-604(3) unconstitutional. The appellant, however, made no constitutional claim before the trial court, and offers no compelling reason why we should overrule our holding in Miller or hold § 5-4-604(3) unconstitutional.

Appellant next contends the jury returned conflicting findings in the penalty phase of the trial. In this connection, the jury unanimously found the appellant committed another felony, an element of which was the use or threat of violence to another person. However, in addition, some of the jurors found that the appellant had no significant history of prior criminal activity. Appellant concedes that it is not impossible to reconcile the jury’s two findings but that to do so is speculation. Appellant suggests the conflict exists because the commission of a felony involving force or violence, by definition, is a significant criminal activity. We disagree.

In Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), we stated we will not substitute our judgment for the judgment of the jury that heard the evidence if there is a reasonable and understandable application of the facts to the statutory circumstance. Contrary to appellant’s argument, we believe the jury could have unanimously found appellant committed prior violent felonies used by the state in showing an aggravating circumstance, but at the same time, some jurors may not have considered those prior felonies a significant history of prior criminal activity.

Finally, appellant argues the state failed to prove the aggravating circumstance that he had previously committed another felony involving the use or threat of violence to another person. See Ark. Code Ann. § 5-4-604(3) (1987). The state alleged appellant had committed aggravated assault and terroristic threatening. See Ark. Code Ann. §§5-13-204,5-13-301(a)(1) (1987). We have held that the same degree of proof is not required to sustain a jury finding that an aggravating circumstance exists, as would be required to sustain a conviction. Miller, 269 Ark. 341, 605 S.W.2d 430. Regarding the state’s allegation of aggravating evidence, Pam Warren testified that on April 27, 1984, the appellant threw a knife at her that broke a tile and landed only six inches above her head. Clearly, the knife throwing incident created a substantial danger of death or serious injury. Later that same evening, the appellant stood in the kitchen doorway pointing a gun and laughing at Pam for four or five minutes. She testified that she was terrified, and called the police. We have no hesitancy in concluding the evidence was sufficient to prove the aggravating circumstance required under § 5-4-604(3).

In accordance with Ark. Sup. Ct. R. 11 (f), we have reviewed all objections decided adversely to the appellant, and we find no error. For the reasons stated above, we affirm.

       In so arguing, the appellant points out, and the state concedes, that the state hospital’s evaluation of the appellant was made without the use of a psychiatrist.

       Apparently, prior to trial, the trial court denied his request for appointment of a psychiatrist to assist him in developing issues relating to mitigating circumstances. Nevertheless, appellant was later given ample opportunity to contact Dr. Oglesby prior to trial and call him as a witness at trial.


author: Tom Glaze, Justice. Robert H. Dudley, Justice,

text:
    Vernon ROSS v. STATE of Arkansas
    CR 89-63
    779 S.W.2d 161
    Supreme Court of Arkansas
    Opinion delivered November 6, 1989

      W. Hunter Williams, Jr,, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is an appeal from the appellant’s conviction of arson resulting in more than $ 100,000 in damages to the Osceola High School, three counts of burglary, and two counts of theft of property. Appellant was sentenced to serve a total of thirty-five (35) years in prison. On appeal, appellant argues twelve points of error. We find no error, and therefore affirm.

On December 2, 1987, around 1:00 a.m., a fire occurred at the Osceola High School in Mississippi County, Arkansas. The fire destroyed 22,000 square feet of the school and caused extensive water and smoke damage in the remaining parts. The library (with its 7,000 volumes), the cafeteria and the administrative area of the school were all completely destroyed. When the fire was extinguished, it was determined that several different fires were intentionally set in the building. There was also evidence of vandalism found inside the school. A display case containing old football jerseys was broken and books were thrown around the class rooms. In addition, a break-in at the Osceola Athletic Complex was discovered. A window was broken out and articles of athletic equipment were stolen. On that same day, a garage owned by Joe Harris, Jr., was burglarized, and, among other things, a gun and disk camera were taken.

After the foregoing crimes but on the same day, Billy Wright reported to the police that the appellant, Vernon Ross, and Jerry Walker had been to his trailer that morning bragging and laughing about burning down the high school. Wright told the police that these men had with them a gun, a disk camera and a bag containing athletic equipment, and they had left these objects in his trailer. Walker attempted to sell Wright the gun and admitted that it belonged to Joe Harris. Wright had used the camera to take pictures of Walker and Ross. The police went with Wright to retrieve the stolen objects from his trailer. The film in the camera was developed, and the appellant and Walker were identified in the pictures. Eddie Green, who also had been present when the appellant and the others were at Wright’s trailer, gave a statement which corroborated Wright’s account. After arresting Walker, the police were informed that the appellant and Yulandia Carruthers were at the Judge Motel. The policemen knocked on the appellant’s motel room at 7:30 a.m. on December 3 and identified themselves. The appellant opened the door and was told that he was under arrest. The police officers did not have an arrest warrant. The appellant was read his rights and was transported to the police station. At 8:55 a.m., the appellant gave the police a statement about the arson and theft at the high school and the burglary and theft at Joe Harris’s garage. Carruthers also gave the police a statement in which she admitted driving the appellant and Walker to the high school.

Appellant first argues that the trial court erred in denying his motion to suppress his statement because of the illegality of his arrest. A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed a felony. A.R.Cr.P. Rule 4.1. At the suppression hearing, the trial judge found that the police officers had probable cause to arrest the appellant. We agree.

Probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that a crime has been committed by the person suspected. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). The degree of proof sufficient to sustain a conviction is not required for probable cause to arrest. Id. All presumptions are favorable to the trial court’s ruling on the legality of the arrest and the burden of demonstrating error rests on the appellant. Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987).

In the present case, the police officers knew that the fire at the Osceola High School was arson and that the athletic complex had been broken into and equipment had been stolen. In addition, they knew that a gun and camera had been stolen from Joe Harris’s garage. Billy Wright told the police that the appellant and Walker had bragged about burning the school and that they had a gun, camera and athletic equipment with them. According to Wright’s statement, Walker admitted that the gun belonged to Joe Harris. Eddie Green, who was also present at the trailer, corroborated Wright’s statement. The police retrieved the stolen property at the trailer and Harris identified the gun. The film in the camera was developed and the pictures were of the appellant and Walker holding the stolen gun. Clearly, the police had probable cause to arrest the appellant.

We also find no merit in the appellant’s argument that Payton v. New York, 445 U.S. 573 (1980), dictates a finding that his arrest was illegal because the police entered his motel room. In Payton, two companion cases were heard by the Supreme Court involving police officers entering a suspect’s home to make a warrantless arrest. One of these cases involved the police using crowbars to break into an apartment where no one was home. After breaking into the apartment, the police found a .30 caliber shell casing which was used at trial against the defendant. Thé second case involved a young child opening the door for the police. Before the suspect was given a chance to object, the police entered the house and arrested him. The Supreme Court found both of these entries by the police unacceptable and held that the fourth amendment prohibited the police from making a warrantless and nonconsensual entry into the suspect’s home in order to make a routine felony arrest.

Clearly, the facts in the present case are distinguishable from those in Payton. Here, the appellant, himself, opened the door dressed only in a sheet. While he denied inviting the officers in, he also never suggests that he asked them to wait outside while he got dressed. Furthermore, one of the policemen, Larry Robinson, testified that the appellant did invite them into his room. As we have said numerous times, conflicts in testimony are for the trial judge to resolve, and the judge is not required to believe any witness’s testimony, especially the testimony of the accused since he is the person most interested in the outcome of the proceedings. See, e.g., Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986).

We take this opportunity to dismiss two of the. appellant’s arguments concerning procedural aspects of his trial. Due to pretrial publicity, the appellant received a change of venue from the Osceola District of Mississippi County. In his motion for change of venue, the appellant, a black male, requested the trial be moved to Crittenden County, because it had a similar racial makeup as Osceola, where the crime occurred. The trial judge moved the trial to the Jonesboro District of Craighead County. Appellant made a motion for a second change of venue and presented statistical evidence showing the black and white population of the areas in question. He argued below, and now on appeal, that he was entitled to a change of venue to a district with a similar racial makeup as where the crime occurred. The trial court denied appellant’s second motion. We summarily dismiss the appellant’s argument, because he has failed to cite any authority to support his argument. This court will not consider arguments unsupported by convincing argument or authority. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Also, we note that the appellant failed to present evidence to the court which showed the number of black and white prospective jury panel members. Concerning another procedural point, the appellant argues that the trial court erred in refusing his motion for a bifurcated trial. He argues that he should be entitled not to testify during the guilt phase of the trial without waiving his right to address the jury about punishment in the sentencing phase of the trial. Here, the appellant testified at the trial and addressed the jury about being sorry for any wrongs he had committed. We allow bifurcated trials in capital murder cases, DWI cases and cases involving habitual offenders. However, we know of no authority, and the appellant cites none, which would call for a bifurcated trial in this instance.

The next five issues we will address concern the appellant’s conviction for arson. First, the appellant argues that the trial court erred in refusing three arson instructions that he proffered. In regard to the common law presumption against arson, these proffered instructions informed the jury that the school fire must be presumed accidental and that the state must prove that the fire was caused by a willful act. The trial judge instructed the jury using the model instructions on arson, which informed the jury that the state must prove that the appellant started a fire with the purpose of destroying or otherwise damaging a vital public facility. See AMI Criminal, 1902. Instructions which do not conform to the model instructions should be given only when the trial judge finds the model instructions do not accurately state the law or do not contain a necessary instruction on the subject. Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985).

We first note that the appellant did not abstract any of the jury instructions. This court does not require an appellant to abstract all of the instructions given by the court as predicate to objection on appeal to failure of the trial court to give an instruction proffered. Newberry v. Johnson, 294 Ark. 455, 743 S.W.2d 811 (1988); Hunter v. State, 8 Ark. App. 283, 653 S.W.2d 159(1983). While we do not require the abstract of all of the instructions, it is necessary for the court to review the trial court’s instructions on arson to determine if these instructions covered the common law presumption against arson. Further, the appellant fails to argue that the trial court’s jury instructions on arson did not cover the issue contained in his proffered instructions. He alleges merely that his instructions are proper. Even if the appellant’s instructions were correct, it is not error for the court to refuse to give them if the other instructions given cover the issue. Wallace v. State, 270 Ark. 17, 603 S.W.2d 399(1980). On the record before us, we cannot say that the trial court erred in refusing the appellant’s jury instructions.

Next, the appellant argues that there is insufficient evidence to support his conviction of arson, Class Y felony. His main contention is that the state’s case did not overcome the common law presumption against arson. In a related issue, he also argues that the school superintendent’s testimony showing the amount of damage to the building was hearsay and should not have been admitted into evidence. Under Ark. Code Ann. § 5-38-301 (a)(4) (Supp. 1987), a person commits arson if he starts a fire. . . with the purpose of destroying or otherwise damaging a vital public facility. Arson is a Class Y felony if any property sustains damage in excess of $100,000. Ark. Code Ann. § 5-38-301 (b).

In order to overcome the common law presumption against arson, this court has stated that the state must prove not only the burning of the building, but the evidence must also disclose that it was burned by the willful act of some person criminally responsible for his acts, and not by natural or accidental causes. Thomas v. State, 295 Ark. 29, 746 S.W.2d 49 (1988). When reviewing the sufficiency of evidence to support a conviction, we view the evidence in the light most favorable to the appellee, and the judgment must be affirmed if there is any substantial evidence to support the finding of the trier of fact. See, e.g., Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986). At the trial, the state presented testimony from three experts concerning the cause and origin of the fire. One of these experts was Fred Hendrix, the fire chief of Osceola. Appellant argues on appeal that Hendrix was not qualified to testify as an expert on the point of origin and cause of the fire. While Hendrix admitted that he was not certified in cause and origin investigation, he had fifty-one years experience in fire fighting and had attended courses dealing with arson and the determination of cause and origin of fires. We dismiss the appellant’s argument by stating that the determination of the qualifications of an expert witness lies within the discretion of the trial court, and its decision will not be reversed unless this discretion is abused. Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980). With Fire Chief Hendrix’s fifty-one years experience and training in fighting fires, we cannot say that the trial court abused its discretion.

In addition to Hendrix, Stephen Dozier, an investigator in the Arson Investigation Unit of the State Police and Robert Golson, a special agent with the Bureau of Alcohol, Tobacco and Firearms of the U.S. Treasury Department also testified for the state. They all agreed that several fires were intentionally set in the building by igniting piles of paper and books. Evidence of these fires was found in three or four locations in the school building. While the witnesses stated that they also believed a fire was set in the library, they could not positively identify the point of origin because the area was completely destroyed. In addition, Hendrix testified that the fire could not have started in the school’s heating and cooling units located on the roof, because there was too much damage to the ground floor of the building.

Further evidence of arson was shown by policemen who testified about the vandalism inside the school and the break-in at the athletic complex. During this testimony a part of a broken stick and piece of garden hose that were discovered in Walker’s car were introduced into evidence over the appellant’s objection. The other part of the stick was found by a broken glass case inside the school building, and the piece of garden hose smelled like gasoline. In appellant’s statement, he stated that the stick was used to break the glass case and that the section of the hose was used to siphon gasoline. The appellant argued below and on appeal that a chain of custody had not been established as to the broken stick and that the appellant had not consented to the search of the accomplice’s, Walker’s, car. As to the search issue, the appellant simply has no standing to question the search of a vehicle owned by another person. Tippitt v. State, 294 Ark. 342, 742 S.W.2d 931 (1988). Regarding the chain of custody argument, it is only necessary for the trial judge, in his discretion, to be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). The police officer testified that he identified the stick, and the stick had an evidence tag on it with the officer’s initials. Clearly the requirement of a chain of custody was met.

Undoubtedly, the state presented sufficient evidence to rebut the common law presumption against arson. The evidence set out above, along with the appellant’s statement and testimony, clearly shows that the fire in the high school was intentionally set by Walker and the appellant.

Regarding the state’s burden in proving the school building damage exceeded $100,000 (a Class Y felony), the state called Carroll Smith, the superintendent of the Osceola School District to testify. Smith testified without objection to the structural and physical damage done to the school, which included the loss of the library with its 7,000 volumes. Then, Smith was asked the total dollar amount of the damages to the school. After stating that he had been superintendent of the school district for three years, was the custodian of the records, and was the one responsible for letting and receiving the bids, Smith was allowed to testify that the total damage to the school and its contents was $ 1,3 80,504.09. Apparently, Smith obtained this figure for the total damages from a contracting bid for reconstruction of the school and from an insurance adjuster’s file. Smith did not have any of the records with him in the courtroom.

The appellant argued below, and now on appeal, that Smith’s testimony was hearsay and therefore inadmissible, because it was based on a contracting bid. The state argues that Smith’s testimony is admissible, because he is an expert pursuant to A.R.E. Rule 702, and therefore he can base his testimony on facts made known to him before the hearing. A.R.E. Rule 703. While arguably Smith might qualify as an expert because of his specialized knowledge of the value of Osceola High School and its contents from receiving and letting bids, we need not address that issue because of certain testimony solicited from the superintendent on cross-examination. In the appellant’s questioning of Smith about what was included in the contents of the school, the superintendent testified that it would cost $20.00 to $25.00 a volume to replace the 7,000 volumes that were destroyed. Appellant never questioned this value testimony, nor asked that it be stricken. From this testimony alone, there is proof that the damage to the school building and its contents exceeded $100,000. Most likely, appellant interposed no objections to Smith’s testimony because, as a superintendent, he would be expected to possess the knowledge to testify about the cost of library books to a school. See A.R.E. Rule 701. In any event, with the value testimony solicited by appellant’s counsel on cross-examination, we are unable to say that the appellant was harmed by allowing the superintendent to testify as to the school’s total damages. This court will not reverse unless the appellant has shown prejudice. See, e.g., Sutherland v. State, 292 Ark. 103, 728 S.W.2d 496 (1987).

A similar argument was made regarding Coach Jim Hembree’s testimony about the value of the athletic equipment stolen from the athletic complex. The state relied on Hembree’s testimony to prove the appellant’s charge for theft of property, a Class C felony. Theft of property is a Class C felony if the value of the property is less than $2,500, but more than $200. Ark. Code Ann. § 5-36-103(b)(2)(A) (Supp. 1987). After the football coach stated that he had twenty-three years experience in buying and acquiring athletic equipment, Hembree was allowed to testify, over the appellant’s hearsay objection, as to what the equipment cost him four or five years ago and to its current replacement value. He stated that the value of the equipment stolen was $204.60 but that the replacement value would be much higher. Unquestionably, Coach Hembree had purchased the school’s athletic equipment and was responsible for its replacement. The value opinion given by him was based upon his own experience and knowledge in purchasing such equipment. See A.R.E. Rule 701. We agree with the trial court that the football coach’s knowledge of the value of the equipment stolen was sufficient to allow him to testify as to its value.

The next three issues also concern evidentiary rulings by the trial judge. First the appellant argues that the trial court erred in refusing to admit a psychological evaluation of Yulandia Carruthers. Carruthers, who had driven the appellant and Walker to the high school on the night of the arson, testified for the state. During cross-examination, Carruthers admitted to having seen Dr. Martinez at the George W. Jackson Community Health Center, but she denied having made statements to Martinez about not remembering the events of the evening (or morning) when the arson occurred or not knowing of the plans to burn the high school. To show these statements were made to Martinez, the appellant called witness Jean Hambry, the medical librarian for the health center, to introduce Carruthers’s medical report into evidence. The prosecutor objected to the introduction of the medical report, because he would not have the opportunity to cross-examine Dr. Martinez.

The trial judge denied the introduction of the medical record into evidence, but he instructed the jury that it could consider as evidence that Carruthers, in an interview with Dr. Martinez, had stated that she was too drunk to remember what happened the night of the fire and that she had no prior knowledge that appellant and Walker had plans to burn the high school. While we might agree with the appellant that the medical report was admissible under a hearsay exception, we need not address the point since any error by the trial judge would be harmless error. The appellant agreed to the trial judge’s reading of Carruthers’s inconsistent statements to the jury, and by this reading the appellant received the relief he sought. As we have stated numerous times, we will not reverse unless the appellant has shown prejudice. Sutherland, 292 Ark. 103, 728 S.W.2d 496.

Next, the appellant argues that the trial court erred in allowing the state to cross-examine the appellant about certain love letters written to Carruthers. During his testimony, appellant stated that he did not care anything about Carruthers. In order to impeach his statement, the state attempted to introduce the love letters he had written to Carruthers. The appellant objected stating that the letters were a surprise and that the state had failed to provide the appellant with copies of the letter pursuant to discovery rule A.R.Cr.P. Rule 17.1. The record shows that the appellant first became aware the state had the love letters during a pre-trial suppression hearing. The state withdrew its request to introduce the letters, but the prosecutor was later allowed to use the letters on cross-examination in his attempt to impeach appellant’s testimony on direct examination that “he never cared for her [Carruthers]The prosecutor’s use of the letters was certainly proper in this respect. Even so, the contents of the letters were never revealed to the jury, except the jury learned that the word “love” was used in several of the letters the appellant had written to Carruthers.

Finally, the appellant argues that the trial court erred in not allowing the appellant to introduce a copy of the judgment and sentence received by his accomplice, Jerry Walker. Walker did not testify at the trial. In Robinson v. State, 278 Ark. 516, 648 S.W.2d 444 (1983), we said that the sentence another defendant received is not relevant to guilt, innocence, or punishment, but that the sentence could be offered to show bias or prejudice of a witness. Since Walker did not testify, the trial court was correct in ruling that his sentence was irrelevant.

For the reasons stated above, we affirm.

Dudley, J., dissents.

Robert H. Dudley, Justice,

dissenting. The majority opinion holds that the police may validly arrest a person in his motel room, even though the police do not have a warrant of arrest and there were no exigent circumstances.

“Payton v. New York, 445 U.S. 573 (1980), held that, absent probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment.” Welsh v. Wisconsin, 466 U.S. 740 (1984). The Fourth Amendment protection extends to a hotel room which a defendant had permission to use. United States v. Jeffers, 342 U.S.48 (1951).In this case, no exigent circumstances existed, and none are shown to have existed by the majority opinion.

The majority opinion suggests that the illegal arrest was validated because the defendant did not resist the entry by the police. The suggestion of consent is not well-taken. The mere submission to authority is not consent to an illegal arrest. Further, there is a presumption against the waiver of constitutional rights. Johnson v. Zerbst, 304 U.S. 458 (1938).

The arrest was illegal and the exclusionary rule should have been applied. Accordingly, I dissent.

       The appellant also appears to argue below that the evidence is not relevant. Clearly, the evidence is relevant, and its probative value is not substantially outweighed by the danger of unfair prejudice. A.R.E. Rule 403.

       We also note the appellant’s argument that the actual contract bid was needed under the best evidence rule. Because we conclude that there was other sufficient value testimony by Smith and that the appellant failed to show prejudice, we do not address this issue. In addition, we do not address the appellant’s argument that Smith’s testimony was erroneous under A.R.E. Rule 803(8)(iii), because it was raised for the first time on appeal.


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    William T. HUMPHREY v. STATE of Arkansas
    CR 89-113
    779 S.W.2d 530
    Supreme Court of Arkansas
    Opinion delivered November 6, 1989

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

The appellant pled guilty in Sevier County to charges of theft of property and felon in possession of a firearm. As a habitual offender, he received a sentence of eight (8) years for each offense to run concurrently. During the appellant’s incarceration before his plea in Sevier County, he was transferred to Garland County jail for a separate theft of property charge entered in that county. He also pled guilty to the Garland County theft charge, and received a sentence of eight (8) years to run concurrent with his Sevier County sentence. Appellant received seventeen days of jail time credit applied to his Sevier County sentence and 143 days of jail time credit applied to his Garland County sentence. The trial court denied appellant’s request that his Garland County jail time credit should also be applied to his Sevier County sentence. The appellant then filed this pro se appeal, arguing the trial court erred in denying his request. His argument is without merit.

Under Ark. Code Ann. § 5-4-404 (1987), a defendant held in custody for conduct that results in a sentence to imprisonment, shall have the court credit the time spent in custody against the sentence. This court repeatedly has held that credit for jail time is appropriate when the pretrial incarceration is due to inability to make bail, but that it is not appropriate when the incarceration is due wholly to unrelated charges that are based on conduct other than that for which the defendant is sentenced. Travis v. State, 292 Ark. 463, 730 S.W.2d 501 (1987); McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986); Cox v. State, 288 Ark. 300, 705 S.W.2d 1 (1986). The appellant’s incarceration in Garland County was related to the theft of property charges brought in that county and was unrelated to his charges in Sevier County. In other words, the appellant’s incarceration in Garland County was due wholly to unrelated charges that were based on conduct other than that for which the appellant was sentenced in Sevier County. The trial court was infinitely correct in applying the jail time to the two separate crimes involved here.

For the reasons stated above, we affirm.