author: Steele Hays, Justice.

text:
    Howard Dewayne BEARD, Jr. v. STATE of Arkansas
    CR 91-85
    816 S.W.2d 860
    Supreme Court of Arkansas
    Opinion delivered September 30, 1991

      Terry Garner and Larry Dean Kissee, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Howard Dewayne Beard, Jr., was tried and found guilty of attempted capital murder and aggravated robbery. The trial court dismissed the charge of attempted capital murder and appellant was sentenced as a habitual offender to eighty-five years in the Department of Correction. We find no merit in the four points of error argued on appeal and, accordingly, the judgment of conviction is affirmed.

I

The Trial Court Erred in Denying the Appellant’s Motion for a Directed Verdict

Bruce Delargy testified that on the evening of December 16, 1989, he was working on a tire when appellant entered Herb’s Tire Sales and Service. Appellant asked Delargy for a check which had been returned for insufficient funds. As Delargy walked toward a desk to retrieve the check he heard a “gun snap.” He turned and saw appellant holding a cocked pistol. Delargy lunged for the bathroom and appellant fired, striking Delargy in the left shoulder. When Delargy came out of the bathroom moments later, he saw appellant turning his truck around on the parking lot headed back toward the shop. Delargy locked the front door and hid in the bathroom. He heard appellant fire a second shot, enter the building and fire a third shot through the bathroom door. Delargy could hear appellant rummaging through drawers and when he came out of the bathroom he found appellant had taken the cash register.

Appellant was charged with aggravated robbery, defined in Ark. Code Ann. § 5-12-103 (1987), as robbery while armed with a deadly weapon, or inflicting or attempting to inflict death or serious injury upon another person. Ark. Code Ann. § 5-12-102 (Supp. 1989).

Appellant argues that there was insufficient evidence to support his conviction of aggravated robbery because he left the premises and did not employ or threaten physical force upon Bruce Delargy at the time he stole the cash register.

A defendant’s threats or acts of physical force “must occur either before the taking (though continuing to have an operative effect until the time of the taking) or at the time of the taking” to constitute robbery. 2 W. LaFave & A. Scott, Jr., Substantive Criminal Law § 8.11(e) (1986) (emphasis in the original); see also, 67 Am. Jur. 2d Robbery § 28 (1985). The correlation necessary between the physical force and the theft to sustain a conviction for aggravated robbery was addressed in Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988), where the appellant argued that while physical force was used to commit a rape, no force was used to commit a subsequent robbery. The prosecutrix testified that during the rape the appellant threatened her with a knife and afterward, when he was going through her purse, she believed he would hit her again. We affirmed the conviction of aggravated robbery. See also Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980).

Here, even though appellant left the building briefly, his use of a deadly weapon on both occasions provides all the threat necessary to sustain the charge. Looking at the circumstances as a whole, we cannot say as a matter of law there was no connection between the force exerted and the theft of the cash register. That issue was properly put to the jury.

II

The Trial Court Erred in Overruling Appellant’s Objection to Testimony From the State Psychiatrist About Statements Made by the Appellant Concerning Other Bad Acts

Dr. O. Wendell Hall, a psychiatrist and the medical director of forensic services at the Arkansas State Hospital, who examined the appellant pursuant to court order, was called as an expert witness during the state’s case-in-chief. During the course of direct examination Dr. Hall testified about his examination to determine appellant’s mental status with regard to the criminal charges. Asked whether he arrived at a precise diagnosis, Dr. Hall responded:

I found Mr. Beard to be alert, friendly, seemed to be very willing to talk to me and the other people in the room. Seemed very much at ease talking to us. One of the comments that I remember making about him, he had on a white shirt and he looked real clean and fresh, that he looked cool as a cucumber, and it was a real hot day the day we saw him. And he just looked calm as he could be, talking about what he did. He even seemed to be pretty proud of some of the things that he had done or gotten away with.

The appellant objected and requested a mistrial. He argues that Ark. R. Evid. 503 was violated because the communications between appellant and Dr. Hall were not related to the particular purpose for which the examination was ordered. Instead, appellant argues Dr. Hall was allowed to testify about unrelated acts of misconduct, and his Fifth and Sixth Amendment rights were violated.

We need not dwell on this point. The remarks were only marginally objectionable at best, and certainly not of the magnitude to entail the drastic remedy of a mistrial. Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). Moreover, nothing in the quoted excerpt from Dr. Hall’s testimony suggests that he was referring to confidential communication made by the appellant. Nor is it at all inferable that the mention of “some of the things [appellant] had done or gotten away with,” referred to other wrongs, if indeed they were that. The remarks may well have been in reference to the very acts in question. Thus, neither Ark. R. Evid. 404(b) nor 503 is applicable.

Ill

The Trial Court Erred in Denying the Appellant’s Motion for Assistance of Expert and Overruling the Appellant’s Objection to the Determination of the Appellant’s Mental Capacity to Proceed

Subsequent to the appellant’s notice of intent to raise the defense of mental disease or defect the trial judge ordered the appellant sent to the Arkansas State Hospital or the Diagnostic Unit of the Arkansas Department of Correction for a determination of his ability to assist in the preparation and conduct of his defense. Pursuant to the court order an evaluation was conducted by an evaluation team from the Arkansas State Hospital.

Appellant argues that the psychiatric evaluation was inadequate because it lasted only an hour. However, in comparing Dr. Hall’s letter of evaluation with the requirements of the report of examination set out in Ark. Code Ann. § 5-2-305(d)(l) through (4) (1987), it is clear there was compliance with the statutory requirement as to a mental examination. See also Wright v. State, 270 Ark. 78, 603 S.W.2d 408 (1980).

Appellant also moved for the assistance of an expert psychologist and psychiatrist in addition to the court ordered examination. The court denied this motion. Appellant argues that because he relied solely upon the insanity defense it was error to refuse this request. Ake v. Oklahoma, 470 U.S. 68 (1985). He urges the state is required to provide an indigent defendant with competent psychiatric assistance.

We note that Beard made no preliminary showing that his sanity at the time of the offense was likely to be a significant factor at trial, a threshold requirement under Ake. More importantly, we have held that where a defendant is evaluated by the State Hospital, as here, such an evaluation complies with the dictates of Ake. Branscomb v. State, 299 Ark. 482, 744 S.W.2d 426 (1989); Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989); See v. State, 296 Ark. 498, 757 S.W.2d 947 (1988); Starr v. State, 297 Ark. 26, 759 S.W.2d 535 (1988); Dunn v. State, 291 Ark. 131, 722 S.W.2d 595 (1987); Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).

IV

The Trial Court Erred in Overruling the Appellant’s Objections to Further Closing Arguments After the Jury Was Instructed on the Appellant’s Previous Convictions

Appellant was charged under the Habitual Offenders Act and a bifurcated trial was conducted on guilt and punishment. Following the guilt phase, verdict forms were submitted to the jury for both the aggravated robbery charge and attempted capital murder. The jury returned a verdict of guilty on both charges. Following the jury verdict the trial court addressed the appellant’s prior motion to dismiss on the basis of the same conduct. At that time the state requested the attempted capital murder conviction be dismissed, however, the trial court submitted both charges to the jury at the punishment phase and reserved a ruling on the motion. After the punishment phase was completed the court dismissed the attempted capital murder conviction.

The appellant argues that it was error to submit both the aggravated robbery conviction and the attempted capital murder conviction to the jury for sentencing consideration because it violated the double jeopardy clause to the Arkansas Constitution.

Ark. Code Ann. § 5-1-110(a)(1) and (b)(l)-(2) (1987) provides:

Conduct Constituting More Than One Offense-Prosecution.
(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(1) One offense is included in the other, as defined in subsection (b) of this section. . .
(b) A defendant may be convicted of one offense included in another with which he is charged. An offense is so included if:
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or (2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

The general rule is when a criminal offense by definition includes a specified lesser offense, a conviction cannot be had for both offenses under Ark. Code Ann. § 5-1-110. In accordance with the general rule, when the appellant was convicted of both attempted capital murder and aggravated robbery, the conviction for aggravated robbery was set aside under the reasoning that aggravated robbery was the lesser included offense. Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982).

The problem here, under the reasoning of Barnum and Rowe, is that the trial court set aside the attempted capital murder conviction instead of the aggravated robbery charge, ostensibly the less serious crime. Nevertheless, that was in accord with a case decided soon after Rowe and Barnum. In Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982), this Court set aside one of the two convictions based on the classification of the crime rather than whether it was a lesser included offense:

While it was necessary for the jury to find petitioner guilty of a felony, i.e., aggravated robbery, to find him guilty of attempted first degree murder, the jury and the legislature clearly considered aggravated robbery to be the more serious crime. The jury’s intention can be seen in its verdict specifying 50 years for aggravated robbery and 34 years for attempted murder. The legislative intention can be discerned from the classification at the time of the crime of aggravated robbery as a class A felony, Ark. Stat. Ann. § 41-2102(2) (Repl. 1977), while attempted first degree murder was punishable as a class B felony, Ark. Stat. Ann. §§ 41-703(2), 41-1502(3) (Repl. 1977). Accordingly, the conviction and sentence for the less serious offense, attempted first degree murder, are set aside. The conviction and sentence for aggravated robbery are not disturbed.

Id. at 221.

In this case, attempted capital murder is a class A felony Ark. Code Ann. § 5-3-203(1) (1987) and aggravated robbery is a class Y felony. Ark. Code Ann. § 5-12-103 (1987). The jury sentenced Beard to fifty years for the attempted capital murder conviction and eighty-five years for aggravated robbery. Therefore, under the reasoning in Wilson the trial court was correct in setting aside the attempted capital murder conviction.

The appellant also argues that it was error to allow additional closing argument in the sentencing phase of the trial because it is not provided for in the statutory provision [Ark. Code Ann. § 5-4-202 (1987)] providing for sentencing procedure for habitual offenders. He maintains it prejudiced him because the prosecutor was able to argue punishment on both convictions. The appellant cites no authority for his contention beyond the language of Ark. Code Ann. § 5-4-502, which gives us no guidance. However, we find some analogy to the procedure in capital cases, see Ark. Code Ann. § 5-4-602 (1987), and that, coupled with the trial court’s broad discretion in the management of trial proceedings generally, supports the conclusion there was no error.

The appellant’s final point is that he should have been allowed to argue mitigation in his closing argument. In Coley v. State, 304 Ark. 304, 801 S.W.2d 647 (1991), we held that the proper time to introduce mitigating factors was in the guilt-innocence phase.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Bill CLINTON, Governor of Arkansas; State Board of Correction, Ray Hobbs, Warden, Wrightsville Unit, State Department of Correction, and State of Arkansas v. Steven Earle BONDS
    91-44
    816 S.W.2d 169
    Supreme Court of Arkansas
    Opinion delivered September 30, 1991

      Winston Bryant, Att’y Gen., by: Leslie M. Powell, Senior Asst, Att’y Gen., for appellants.

      Jacoway, Sherman & Pence, by: William F. Sherman, for appellee.
   Steele Hays, Justice.

The appellee, Steven Earl Bonds, is an inmate currently confined in the Arkansas State Penitentiary serving a thirty-year sentence for a conviction of burglary in 1985. Bonds worked on the Capitol grounds from August 1988 to February 1989. Bonds filed a grievance with the Arkansas Department of Correction, Wrightsville Unit, seeking good-time benefits under Ark. Code Ann. § 12-30-408 (1987) (Act 440 of 1983) for the work done at the Capitol. He received no response. After Bonds wrote to the Governor, George Brewer, Classification Administrator for the Department of Correction, responded to Bond’s letter and informed him that Act 440 was repealed by Act 814 of 1983 and, therefore, inmates are not eligible to earn good-time under the provisions of Ark. Code Ann. § 12-30-408.

Thereafter Bonds filed a pro se petition in the Pulaski Circuit Court challenging the constitutionality of Act 709 of 1989 which amended the Arkansas Administrative Procedures Act by excluding prison inmates from judicial review of administrative adjudications. The respondents (now the appellants) moved to dismiss alleging that Bonds had no standing. The motion was denied. Bonds subsequently filed an amended petition seeking declaratory relief and reasserting that Act 709 was unconstitutional.

After a hearing, the Circuit Court found that the only issue addressed was the validity of Act 709 and held that Act 709 was unconstitutional. Appellants raise two grounds for reversal of the circuit court’s judgment: Bonds did not have standing to challenge Act 709 and the trial court erred in holding the act unconstitutional. We hold that the appellant had standing to challenge the constitutionality of Act 709; and the trial court did not err in finding the Act unconstitutional.

I

STANDING

Appellants state that their primary position has always been that while Bonds has standing to seek declaratory judgment of his rights regarding “good-time” under Act 440, he does not have standing to challenge Act 709, because there has been no administrative adjudication in this case.

But whether or not there was an administrative adjudication is not relevant where the sole issue is the constitutionality of Act 709 of 1989. Bonds sought declaratory relief pursuant to our Declaratory Judgment Act, Ark. Code Ann. §§ 16-111-101 through -16-111-111 (1987). Section 16-111-104 of the Act provides:

Any person . . . whose rights, status, or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute . . . and obtain a declaration of rights, status, or other legal relations thereunder.

See also Lawson v. City of Mammoth Spring, 287 Ark. 12, 696 S.W.2d 712 (1985). (A defendant who had been convicted in a municipal court had standing to seek declaratory relief, to challenge the constitutionality of legislation creating the court, as a person whose rights were affected by the legislation).

Bonds argues that he had no other avenue through which he could obtain judicial review and Act 709 of 1989 specifically excludes such review for inmates. Bonds’ rights are directly affected by Act 709, thus, he has standing to challenge it.

II

Act 709 of 1989

Act 709, codified at Ark. Stat. Ann. § 25-15-212 (Supp. 1991), and entitled, Administrative Adjudication- Judicial Review, provides in part:

(a) In cases of adjudication, any person, except an inmate under sentence to the custody of the Department of Correction, who considers himself injured in his person, business, or property by final agency action shall be entitled to judicial review of the action under this sub-chapter. Nothing in this section shall be construed to limit other means of review provided by law. (Emphasis added).

Bonds contends that Act 709’s preclusion of inmates from judicial review of administrative action in state courts constitutes an unconstitutional denial of due process.

We review challenges to the constitutionality of statutes under the principle that statutes are presumed to be constitutional. First Nat’l Bank v. Arkansas State Bank Comm’r, 301 Ark. 1, 781 S.W.2d 744 (1989). Additionally, the burden of proving a statute unconstitutional is upon the party challenging it. Urrey Ceramic Tile Co. v. Mosley, 304 Ark. 711, 805 S.W.2d 54 (1991). On appeal, if it is possible to construe a statute as to meet the test of constitutionality, we will do so. Id.

We have recognized that administrative agencies, due to their specialization, experience, and greater flexibility of procedure, are better equipped than courts to analyze legal issues dealing with their agencies. First Nat'l Bank v. Arkansas State Bank Commissioner, supra. This accounts for the limited scope of review of administrative action and the reluctance of a court to substitute its judgment for that of the agency. Id.

In particular, the administration of prisons has generally been held to be beyond the province of the courts. Stevens v. State, 262 Ark. 216, 555 S.W.2d 229 (1977); Walker v. Lockhart, 713 F.2d 1378 (8th Cir. 1983). An exception to the courts’ reticence to entertain prisoner’s administrative complaints occurs when the petitioner asserts an infringement upon constitutional rights. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); Glick v. Sargent, 696 F.2d 413 (8th Cir. 1983), Whittington v. Norris, 602 F.Supp. 954 (E.D. Ark. 1984). Likewise, it is a general rule that judicial review of administrative action may be granted or withheld by a legislature in its discretion except when the Constitution requires it. R. Pierce, S. Shapiro and P. Verkuil, Administrative Law and Process § 5.2 (1985); 73 A. C.J.S. Public Administrative Law and Procedures § 174 (1983); 2 Am. Jur. 2d Administrative Law § 565 (1962). H. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953).

Despite the dicta in case law and the strong suggestions advanced by the United States Supreme Court, as well as scholarly analysis, whether a statute that bars judicial review of a constitutional matter would be per se unconstitutional has not been clearly answered in present law. See 5 K. Davis, Administrative Law Treatise % 28:3 (2d ed. 1984). Whether there must be judicial review of the decision of an administrative body to revoke good-time credits was raised in Superintendent, Mass. Corr. Institution v. Hill, 472 U.S. 445 (1985). In Hill, the Supreme Court declined to directly answer the question by finding that the Massachusetts Court, in requiring judicial review, relied on state law rather than on federal constitutional principles; however, the Hill court did note that “[t]he extent to which legislatures may commit to an administrative body the unreviewable authority to make determinations implicating fundamental rights is a difficult question of constitutional law.” Id. at 451. The court also remarked, “[w]hether the Constitution requires judicial review is only at issue if such review is otherwise barred. . .” Id.

In this case, while it was suggested that inmates have other means of judicial review in state courts, nothing was shown justifying that conclusion. Representative Ron Fuller, the sponsor of Act 709, testified about the objective of the legislation and its emergency clause which states “. . . inmates of the Department of Correction have numerous avenues of administrative due process; that it is not necessary to provide them with judicial review under the Arkansas Administrative Procedure Act. . . .” Fuller could not recall receiving any factual data to support that contention at the time he presented the bill to the judiciary committee. The other testimony relevant to this issue was a characterization of the disciplinary and grievance procedures held within the Department of Correction which were described by the appellant, the assistant to the director for the Department’s public and legislative relations, and the Wrightsville Unit’s Warden. There was evidence that an inmate has the right to appeal action taken in a disciplinary proceeding, however, that process ends at the level of the Director within the Department. That being so, it does not clearly appear from the record that an inmate in the Department of Correction has a means of judicial review in state courts of constitutional questions arising from administrative decisions.

We are reluctant to find legislative acts unconstitutional, however, we are compelled to affirm the trial court’s decision to insure that due process is afforded under the Arkansas and United States Constitutions. In doing so, we emphasize that Act 709 unconstitutionally deprives inmates of review of constitutional questions because judicial review of all other administrative questions may be granted, or withheld, according to the Legislature’s discretion.

Affirmed.

       “And except when the Constitution requires it judicial review of administrative action may be granted or withheld as Congress chooses.” Estep v. United States, 327 U.S. 114, 120 (1946); “Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to courts is essential to the decision of such questions. . .” California v. Sanders, 430 U.S. 99, 109 (1977); see also, Johnson v. Robinson, 415 U.S. 361 (1974).


text:
    William L. DEWITT v. STATE of Arkansas
    CR 91-96
    815 S.W.2d 942
    Supreme Court of Arkansas
    Opinion delivered September 30, 1991

      Paul J. Teufel, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

In this appeal from a rape/incest conviction, the appellant argues the trial court was without jurisdiction and the evidence was insufficient. Neither point is persuasive.

The state filed an information charging appellant, William DeWitt, with two counts of rape and one count of incest. Both rape counts alleged that appellant:

did on or before the 20th day of November 1988, engage in deviate sexual activity with another person who is less than fourteen years of age, with all acts occurring in Greene County, Arkansas.

The incest count alleged that appellant:

did on or before the 9th day of November 1989, being sixteen years or older, engage in deviate sexual activity with a person he knows to be a stepchild with all said acts occurring in Greene County, Arkansas.

A jury trial resulted in appellant being convicted of all three counts with a sentence of thirty years on each count of rape and ten years on the count of incest. The two thirty year sentences were ordered to run consecutively and the ten year sentence concurrently.

Appellant first argues the trial court lacked jurisdiction to try the two rape counts, based on insufficient testimony indicating the exact location of the crimes.

Appellant moved from Louisiana to Greene County, Arkansas, along with his wife and stepdaughter. The record shows that from that time on appellant committed sexual criminal acts with the stepdaughter, who was twelve at the time of this move. Appellant argues that the trial court was without jurisdiction to hear this case, relying on Ark. Code Ann. §5-1-111(1987) which provides:

Burden of proof-Defenses and affirmative defenses-Presumption.
(a) Except as provided in subsections (b), (c), and (d) of this section, no person may be convicted of an offense unless the following are proved beyond a reasonable doubt:
(1) Each element of the offense;
(2) Jurisdiction;
(3) Venue; and
(4) The commission of the offense within the time period specified in § 5-1-109.
(b) The state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.

We have dealt with this issue before and have found that the requirement of proof of jurisdiction under § 5-1 -111 (a) is tempered by section (b) of the same statute. We responded recently to the same argument in Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986):

The state need not prove jurisdiction however, “unless evidence is admitted that affirmatively shows that the court lacks jurisdiction.” § 5-1-111. In Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. den., 440 U.S. 911 (1979), we held that before the state is called upon to offer any evidence on the question of jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court.

We find in this case that there was not “positive evidence” that the crime occurred outside the jurisdiction of the state, and hence no error.

Appellant cites testimony which he submits is “positive evidence” that the offense occurred outside the jurisdiction of Arkansas. The most that can be said of that evidence is that while it may imply that the first offense occurred during the trip from Louisiana, and hence, before reaching Arkansas, the proof also established that the crime was repeated numerous times after the arrival in Arkansas. The affirmative proof that jurisdiction in Arkansas is lacking is even weaker than in other cases where we found the evidence suggesting lack of jurisdiction to be insufficient. See Dix v. State, supra; Richards v. State, 279 Ark. 219, 650 S.W.2d 566 (1983).

Secondly, appellant argues the state failed to prove beyond a reasonable doubt that the two counts of rape occurred before the victim was fourteen years of age.

The charge of rape was based on Ark. Code Ann. §5-14-103 (1987):

(A) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
* * *
(3) Who is less than fourteen years of age.

Appellant argues the state failed to prove that he committed the two counts of rape when the victim was less than fourteen years old. The argument is a claim that the state failed to prove an element of its case and therefore the information should be dismissed for lack of substantial evidence.

This is a challenge to the sufficiency of the evidence and it has been waived. In a jury trial, the defendant’s failure to move for a directed verdict at the conclusion of evidence presented by the prosecution and at the close of the case constitutes a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. Ark. R. Crim. P. 36.21(b); Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). Appellant made no directed verdict motions, either at the end of the state’s case or the end of all the evidence.

Affirmed.


text:
    Anthony PACEE v. STATE of Arkansas
    CR 90-285
    816 S.W.2d 856
    Supreme Court of Arkansas
    Opinion delivered September 30, 1991

      Edward Oglesby, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Anthony Pacee appeals from a judgment on conviction of four counts of violation of the Arkansas Uniform Controlled Substance Act and felon in possession of a firearm, resulting in concurrent sentences of twenty, twelve, twelve and life. Sentencing was enhanced by reason of prior convictions.

Appellant presents four issues on appeal: one, the trial court erred in denying a motion to quash the jury panel and declare a mistrial because of improper use of peremptory challenges by the prosecutor; two, there was insufficient evidence linking appellant to the contraband seized from his residence and from a vehicle; three, the trial court erred in not allowing appellant or his counsel to testify at either the guilt or punishment phase concerning appellant’s .attempts at compliance with a plea bargain agreement; and four, it was error to admit state’s exhibits two, three and four as evidence at the penalty phase of the trial.

I

Appellant is a fifty-one year old black male. He was tried by a panel consisting of eleven white and one black jurors. After the jury was seated, but prior to its being sworn, appellant moved to quash the venire and declare a mistrial upon the contention that the state had used its peremptory challenges to strike five of six black prospective jurors in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The court retired to chambers where counsel for the state explained the reasons behind his strikes. Four of the five jurors excused by the state had served on juries during the current terrti. Ms. Westbrook had served on a jury which had been unable to reach a verdict in a criminal trial. Additionally, she had demonstrated some “preconceived notions” that the use of undercover agents in drug arrests was improper. (A. p. 55). Appellant’s brief tacitly concedes that the state was justified in excusing Ms. Westbrook. Another juror, Robert Smith, had served on a jury in a criminal trial which had been unable to reach a verdict and was believed to have made disparaging remarks about a prospective witness, Officer Lancaster. Two of the five, Grigsby and McDaniel, had served as jurors in criminal trials which had difficulty in arriving at a verdict and had been unable to agree on a sentence. Additionally, Ms. McDaniel was believed by the state to be an acquaintance of some individuals who frequented Pacee’s trailer where drugs were allegedly sold and used. As to the remaining juror, Ms. Carson, the state contends that her demeanor and her relationship with a witness in a recent criminal trial whose testimony the state regarded as perjured, rendered her subject to peremptory challenge. The state’s sixth and final peremptory challenge was used to excuse Wilma Williams, a white juror, who like other members of the panel, had served on a hung jury in a criminal trial. The appellant submits these reasons are insufficient.

In Batson v. Kentucky, supra, the United States Supreme Court, while recognizing that a prosecutor ordinarily is entitled to exercise permitted peremptory challenges “for any reason at all, as long as that reason is related to his view concerning the outcome” of the case to be tried [citing United States v. Robinson, 421 F.Supp. 467 (Conn. 1976)], held that the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on the basis of race, or the assumption that black jurors as a group will be unable impartially to consider the state’s case against a black defendant. If a discriminatory pattern in the use of peremptory challenges is demonstrated, the burden shifts to the state to come forward with a neutral explanation for challenging black jurors. The Batson court noted that while the scope of peremptory strikes was thus limited somewhat in relation to its historical exercise, the prosecutor’s explanation need not rise to the level justifying the exercise of a challenge for cause. Batson at 97. This court has applied the law adopted in Batson, procedural and substantive, in several recent cases: Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990); Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989); White v. State, 298 Ark. 55, 59, 764 S.W.2d 613 (1989); Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). Ford v. State, 296 Ark. 8, 20, 753 S.W.2d 258 (1988); and see Shields v. State, 29 Ark. App. 141, 143, 778 S.W.2d 649 (1989). We have said that the standard by which we review the trial court’s evaluation of the sufficiency of the prosecutor’s explanation is whether those findings are clearly against a preponderance of the evidence. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990).

In view of the state not having used all of its peremptory challenges to exclude members of the appellant’s race, or appellant having been tried by an all white jury, and the fact that the state’s explanations were found by the trial court to be sustained by the preponderance of the evidence, we reject the argument that a Batson violation has been demonstrated. However, we reach that conclusion because of the record presented. The notice of appeal designates the entire record as the record on appeal, yet a notation from the court reporter reflects that at the direction of counsel for the appellant the voir dire was excluded from the transcript. Thus we are deprived of that critical portion of the trial proceedings which would enable us to consider “all relevant circumstances” [Batson, 476 U.S. at 86-97] from which to determine how and why peremptory challenges were used or withheld, and whether the state’s explanations are race neutral and credible. We note the nonuse of peremptory challenges may be just as relevant as the use, because it sometimes develops that the state’s purported reason for striking a venire person of one race is not exercised in a neutral manner. See, for example, Floyd v. State, 511 So.2d 762 (Fla. Dist. Ct. of App. 1987), and cases cited in an exhaustive treatise on issues arising in the wake of Batson. A. Raphael, Discriminatory Jury Selection: Lower Court Implementation of Batson v. Kentucky, 293 Williamette L. Rev. 297 (1989). Before leaving the matter of the state’s explanation for its strikes, we point out that the state’s explanation that Ms. Carson was struck because of her “demeanor” could not withstand scrutiny for lack of specificity.

Appellant argues that the prosecutor failed to question several of the five panelists, arguing that grounds for peremptory challenge must be established by interrogation during voir dire. No authority is cited for this position and we are not persuaded. Certainly the prosecutor must be prepared to defend a strike on race neutral grounds if a sensitive inquiry is conducted, but we know of no reason why that ground, if sufficient, must be developed by question and answer. For that matter, it would not be permissible for the prosecutor to ask venire persons how they had voted on a case that had ended in a hung jury.

The state urges that appellant’s objection under Batson was untimely, since it did not come until the jury was seated. It is the state’s position that the objection must be advanced at the first opportunity, that is, when the first strike is used and, which is subject to challenge under Batson. But we are not convinced that a “pattern of discrimination” is demonstrated, at least for purposes of preserving the point for review, when the first member of a minority class is struck. So long as the objection is made before the jury is sworn, we regard it as timely. Stanley v. State, 313 Md. 50, 542 A.2d 1267 (1988). It has been suggested that panelists who have been struck not be released until the jury is sworn. In that manner reversible error can be averted should the trial court, after hearing the state’s explanation, decide the state’s grounds are insufficient and order the juror reinstated. That procedure appears sound.

II

Appellant claims the trial court should have granted a directed verdict of acquittal in that there was no proof that appellant was in constructive possession of contraband forming the basis of the four counts with which he was charged. Appellant cites Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990), as holding that constructive possession can only be inferred where the contraband is found in a place “immediately and exclusively accessible to the defendant and subject to his control.” He maintains that since there were two women present, the contraband could not have been exclusively in appellant’s control. The argument presupposes that a showing of joint possession or occupancy of premises where drugs are located defeats a charge of constructive possession. That is a misconception. When the facts demonstrate that the defendant’s accessibility is not exclusive, the state must show additional factors to establish possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 25 (1982); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). Since appellant’s brief fails to address this point further, we will observe only that the two women were not residents of the trailer and, in fact, had never been there previously. Furthermore, the briefcase in which drugs and drug parapernalia were found contained records identifying the appellant. A vehicle containing illegal items was registered in his name. It is enough for the state to prove two elements: 1) that the appellant exercised care, control and management over the contraband and 2) he knew the material possessed was contraband. Id.

Ill

Appellant assigns error to the trial court’s refusal to permit appellant to testify with reference to plea bargaining negotiations between the state and the appellant which evidently did not materialize. The trial court excluded the evidence on grounds of relevancy. Since we find neither a proffer nor any clear account of what the evidence would have been, we cannot say the trial court’s ruling was an abuse of discretion. Counsel for appellant then asked that the evidence be introduced in the penalty phase as a matter of mitigation, with respect to which the trial court expressed some doubt. The outcome was that the trial judge reserved judgment on the prospective offer of this proof and the request was never renewed. Appellant’s failure to obtain a ruling is fatal. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989).

IV

In the penalty phase of the trial the state purported to show that appellant, Anthony Curtis Pacee, had two prior felony convictions. State’s exhibit one reflects a felony conviction with a sentence of five/ten years in the United States District Court for the Southern District of California for possession of a controlled substance with intent to distribute. Appellant does not controvert this conviction. State’s exhibit two reflects a felony conviction in the Superior Court of Los Angeles County, California, for first degree robbery by Anthony C. Pace. Appellant objected to the introduction of exhibit two because the surname is Pace rather than Pacee. Exhibits three and four are records of the Department of Justice, Bureau of Criminal Identification, listing some sixteen alias assumed by appellant between 1956 and 1976 involving criminal offenses in California in the vicinity of Los Angeles. The state contends the appellant’s connection to these alias is evidenced by the number assigned by the FBI to Pacee893 989 C. Appellant’s objection to exhibits three and four is that they are not certified by the custodian or other official of the Department of Justice as being true and correct copies. But our statute provides that a previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty. Arkansas Code Ann. § 5-4-504 (1987). We think these documents more than satisfy that requirement.

Affirmed.

       In Edmonston v. Leesville Concrete Co., Inc.,_U.S_, 111 S. Ct. 207 (1991), the Batson principle was extended to civil trials.

       Alias: Curtis Lee Jacobson, Jr; Curtis Lee Jacobs; Curtis Junior Jacobson; Lee Jacobs Prentice; Anthony Curtis Pace; Curtis Pace; Anthony Pase; Anthony Cornilius Pase; Anthony Cornilius Pasee; Anthony C. Passee; Tony Cornelius Passe; Cornelius Passe; A.C. Pacee; Tony C. Pacee; Anthony Passe; A.C. Passe.


author: David Newbern, Justice.

text:
    Leon ASHWORTH v. STATE of Arkansas
    CR 91-104
    816 S.W.2d 597
    Supreme Court of Arkansas
    Opinion delivered September 30, 1991

      Murphy and Carlisle, by: Marshall N. Carlisle, for appellant.

      Winston Bryant, Att’y Gen., by: /. Brent Standridge, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Leon Ashworth contends the Municipal Court, in which he was convicted of driving while intoxicated and failure to maintain control of a motor vehicle, lacked jurisdiction. Ashworth was arrested in Fayetteville where the offenses allegedly occurred but tried in the Elkins Municipal Court. He contends that county-wide jurisdiction granted to Municipal Courts by Ark. Code Ann. § 16-17-206(b) (Supp. 1989) violates the Arkansas and United States Constitution.

We affirm the conviction. The real issue here is whether the Washington County Circuit Court had jurisdiction when it tried Ashworth de novo. If the Elkins Court had no jurisdiction, then neither did the Washington County Circuit Court. Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988); Bynum v. Patty, 207 Ark. 1084, 184 S.W.2d 254 (1944). We have clearly held that the Statute does not violate the Arkansas Constitution, and we do not consider the questions argued here with respect to the United States Constitution because they were not raised in the Circuit Court.

1. The record

As his first point, Ashworth contends the Circuit Court should have granted his motion to remand to the Municipal Court to make a record of his constitutional arguments made there, citing Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1980). The point of our decision in the Horn case was that the constitutional issue had not been raised in the Circuit Court and would not be reviewed on appeal. We review only the decision of the Circuit Court. Pshier v. State. 297 Ark. 260, 760 S.W.2d 858 (1988). Here the Circuit Court considered the issue of the validity of the Statute, and Ashworth has in no manner been prejudiced by the lack of a record of his contentions in the Municipal Court.

2. Constitutionality

Because Ashworth did not raise the federal constitutional question in Circuit Court, it will not be considered on appeal. Even constitutional issues will not be considered for the first time on appeal. Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985); Taylor v. Patterson, 283 Ark. 11, 670 S.W.2d 444 (1984).

In State ex rel. Moose v. Woodruff, 120 Ark. 406, 179 S.W. 813 (1915), this Court held there was no express constitutional limitation upon the General Assembly’s power to vest jurisdiction in Municipal Courts beyond the geographical limits of the municipalities. Although not by unanimous decisions, this Court has upheld legislative granting of extraterritorial jurisdiction to Municipal Courts against every challenge based on Ark. Const, art. 7. Griffin v. State, 297 Ark. 208, 760 S.W.2d 852 (1988); Pshier v. State, supra; Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981).

Affirmed.

Corbin, J., concurs.


author: Tom Glaze, Justice.

text:
    CARROLL ELECTRIC COOPERATIVE CORP. v. CITY OF BENTONVILLE, ARKANSAS
    91-20
    815 S.W.2d 944
    Supreme Court of Arkansas
    Opinion delivered September 30, 1991

      Vowell & Atchley, P.A., by: Stevan E. Vowell, for appellant.

      Kevin J. Pawlik, for appellee.
   Tom Glaze, Justice.

Statutory construction of Act 639 of 1989 (codified as Ark. Code Ann. §§ 14-207-101 to -106) is the subject of this appeal. The City of Bentonville, appellee, annexed certain territory located near the city limits. Under authority of the Public Service Commission, appellant Carroll Electric Cooperative (Cooperative) provided the electricity for this territory. After annexation, the City put up poles and lines so it, too, could provide electricity to this newly annexed area. Three of the Cooperative’s customers requested that their electrical service be disconnected, so that the City could now provide them with electricity. It is undisputed that the City did not acquire any of the Cooperative’s poles, lines, facilities or other physical property, but the Cooperative argues that the City must still compensate it for the loss of its customers under Act 639.

This appeal is the consolidation of two cases involving the three customers who requested the Cooperative to disconnect their services. The Cooperative filed suit for temporary and permanent injunctions to prevent the City from providing electrical service to any of the Cooperative’s member customers without first complying with Act 639 of 1989. The trial court granted a preliminary injunction in one of the cases, but it later granted the City’s motion to dismiss both complaints finding that Act 639 does not apply unless the city takes physical property or facilities. On appeal, the Cooperative argues that the trial court erred in ruling that Act 639 does not provide compensation for the loss of its customers. We do not agree and therefore affirm.

Under section 3 of Act 639, Arkansas municipal corporations owning and operating electric utility systems have the right to acquire any or all properties and facilities of the electric public utilities serving within the newly annexed areas after giving a six-month written notice. Further, section 4 of the Act provides the procedures and valuation formulae governing the compensation of an electric public utility whose properties and facilities have been acquired by a municipality. Subsections (A), (B) and (C) of section 4 are pertinent here and provide as follows:

(A) After the six month notification by the municipality of its election to acquire public utility system properties and facilities the municipality shall pay to the electric public utility an amount equal to the following:
(i) The present-day reproduction cost new of the properties and facilities being acquired, less depreciation computed on a straight-line basis, plus
(ii) An amount equal to the cost of constructing any necessary facilities to reintegrate the system of the electric public utility outside the annexed area after detaching the portion to be sold.
(B) In the event that the electric public utility system does not provide wholesale power service to the municipality acquiring its properties and facilities, the municipality and the electric public utility shall, for a period of six (6) months after the notification required by Section 3 of this act, consistent with laws, rules and regulations of appropriate regulatory authorities and existing power supply agreements negotiate, in good faith, for power contracts which would provide for the purchase of power by the municipality from the electric public utility for an amount ofpower equivalent to the loss of any sales to customers of the electric public utility acquired by the municipality under this act. In the event that the municipality ceases the receipt of wholesale power service from the electric public utility system consistent with the terms of the wholesale power supply agreement prior to five (5) years after the acquisition of electric public utility system properties and facilities under this act, then the municipality will pay, pro rata for the remainder of such five (5) year period in accordance with subsection (C)(ii) of this section.
(C) In the event that such an agreement pursuant to Section 4 (B) cannot be reached within such six (6) month period, then the municipality will pay the public utility for facilities in addition to amounts required by subsection A (i) and (ii) of this section either:
(i) Two hundred thirty percent (230%) of gross revenues less gross receipts taxes received by the public utility for the twelve (12) month period preceding notification from customers in the annexed area or;
(ii) The amount required by subsection (C) (i) payable over five (5) years with interest at the then prevailing AAA insured tax exempt municipal bond interest rate. (Emphasis added.)

In its argument, the Cooperative refers to the language “loss of any sales to customers” in subsection B above and contends that provision provides the Cooperative is entitled to compensation merely for the loss of its customers regardless of whether the City acquired the Cooperative’s property and facilities. Such an interpretation takes the “loss of sales” language out of context and ignores the purpose and plain meaning of the section as a whole. Each subsection of section 4 providing compensation to an electric public utility is triggered when a municipality acquires a public utility’s properties and facilities and the public utility no longer supplies electricity to that municipality. In the present case, the City acquired none of the Cooperative’s properties or facilities, and although it has lost a few customers who chose to switch to the City’s system, the Cooperative continues to provide electrical service to other customers in the annexed area.

The Cooperative also relies strongly on the case of Woodruff Electric Coop. Corp. v. Ark. Public Service Comm., 234 Ark. 118, 351 S.W.2d 136 (1961). There, Forrest City annexed territory where Woodruff Electric Cooperative provided electricity. When Forrest City annexed the territory, Arkansas Power and Light, a lessee of the City, commenced furnishing electricity for the area, and as a result, the Woodruff Cooperative lost nine customers. The Woodruff court construed Act 85 of 1955 which was the controlling law at the time. That Act 85 in pertinent part provided as follows:

If any rural area allocated by the Public Service Commission to a corporation organized under this Act shall be included in, or become a part of any incorporated city, town, or village already being served with electricity by a regulated public utility, then the members of said corporation residing or operating within such city, town or village shall lose their membership and right to receive service from said corporation. It shall be the duty of the Commission to enforce the provisions of this Act and to provide adequate compensation to the corporation for its loss of area and property. . .

Based on the provision quoted above, Woodruff Electric Cooperative was no longer able to provide electrical service to its customers when Forrest City annexed the area. Thus, this court held that Forrest City under the Act, was required to compensate Woodruff for the loss of its nine customers.

The Woodruff case involved different law and different facts. The above-cited provision in Act 85 relied on in Woodruff has since been omitted when Act 85 was amended by Act 103 of 1957, now codified as Ark. Code Ann. § 23-18-331 (1987). Act 103 now provides that cooperatives can continue to provide service to the annexed areas and that the cooperative corporation continuing its electrical service into this newly annexed area must charge a comparable rate.

In sum, under the current statutory provisions, when the City acquires the Cooperative’s properties or facilities, it owes compensation to the Cooperative under section 4(A) of Act 639 of 1989. Further, in the event the Cooperative provides no electricity to the City acquiring its properties or facilities, then the City must compensate the Cooperative as described under subsection 4(B) of Act 639. When the City, however, does not acquire the Cooperative’s properties or facilities, Act 639 does not apply. Instead, the Cooperative merely becomes an alternative supplier, and the City and the Cooperative can both provide electrical service to the area and compete for customers as provided under Act 103 of 1957.

Because the City here acquired none of the Cooperative’s facilities, it owes no compensation to the Cooperative. Instead, the Cooperative can compete with the City for customers.

Finally, we note that the Cooperative, in oral argument, cited several cases from other jurisdictions, but primarily relied on Delmarva Power & Light v. Seaford, 575 A.2d 1089 (Del. 1990), where an electric public utility filed a claim for inverse condemnation after the city annexed territory where the public utility provided services and its customers subsequently switched to the city utility. While there are many similarities between the facts before us and the ones in Seaford, we cannot agree the holding in Seaford is applicable or persuasive. The Cooperative has presented no inverse condemnation claims in this case. Instead, both parties below and on appeal argued Arkansas statutory and case law, and the trial court made its ruling based on this law, as we have on appeal.

For the reasons stated above, we affirm the trial judge’s construction of Act 639.

       The Act 103 of 1957 language pertinent here is still in effect, but the Act was amended for other purposes.


author: Tom Glaze, Justice. Robert S. Lindsey, Special Justice.

text:
    J.D. FISHER, Appellant v. Gerald JONES, Jones Olds-GMC-Buick, Inc., Mercedes-Benz of North America, Inc., Mercedes-Benz Credit Corporation, Appellees Kelly Hill, Thelma C. Hill, Hill Investment Company, Hill Motor Cars II, Inc. and Hill Motor Cars, Inc., Appellees/Cross-Appellants McIlroy Bank & Trust Company, Appellee v. John L. Fisher, James A. Fisher, Fisher Buick, Inc., Fisher Motor Cars, Inc., McIlroy Bank and Colonel Raymond C. Smith, Cross-Appellees

    90-271
    816 S.W.2d 865
    Supreme Court of Arkansas
    Opinion delivered September 30, 1991

      Joe Benson and Jennifer Morris Horan, for appellant.

      Ball & Mourton, Ltd., by: E.J. Ball and Andy E. Adams, for appellees Gerald Jones and Jones Olds-GMC-Buick, Inc.

      Everett & Stutte, by: John C. Everett, for appellee Mercedes-Benz of North America, Inc.

      Crockett & Brown, P.A., by: R.J. Brown, for appellees Kelly Hill, Thelma C. Hill, Hill Investment Co., Hill Motor Cars II, Inc., and Hill Motor Cars, Inc.
   Tom Glaze, Justice.

This multi-faceted litigation revolves around the February 28, 1986, asset sale of a Mercedes-Benz dealership in Fayetteville, Arkansas by Fisher to Hill. Hill took possession, continued the business without interruption, and was granted a Mercedes-Benz franchise. In October 1989, Hill defaulted on his monthly payments, shut down the operation, and removed the inventory and most of the supplies and equipment. On October 31, 1989, Fisher filed a complaint in Washington County Chancery Court (Case No. E-89-1524), and obtained a restraining order in an attempt to maintain the status quo. By amended pleadings he sought a money judgment on the balance due and rescission of the sale agreement with substitutionary restitution where appropriate. Hill, in a counterclaim, asked for rescission and damages.

A short time later, Fisher filed a second complaint in Washington County Chancery Court (Case No. E-89-1592) against, among others, Mercedes-Benz North America, Inc. (MBNA) to enjoin the transfer, sale or award of the Mercedes-Benz franchise, and also for specific performance of an alleged MBNA contractual obligation to now award the franchise to Fisher. The actions were consolidated for trial, and after trial on the merits, all claims, third party claims and counterclaims were dismissed. Both Fisher and Hill have appealed. The decisions of the trial court in denying rescission (E-89-1524), performance (E-89-1592), and other related claims are affirmed.

Fisher first chooses to argue that the chancellor erred in concluding MBNA was not legally obligated to re-issue its Fayetteville franchise to Fisher. The evidence, we believe, supports the chancellor’s legal and factual conclusions on this point.

For many years prior to February 28,1986, Fisher operated an automobile dealership at 2396 North College Avenue in Fayetteville. During the previous thirteen years, he held a Mercedes-Benz franchise with his then current franchise being for the two-year period from January 1, 1986, to December 31, 1987. On February 28, 1986, Fisher and Hill executed an offer and acceptance contract for the sale of the assets of the dealership for a total of $2,500,000.00. Payment, financed by Fisher, was to be in monthly installments of principal and interest over a period of twenty-five years. It was agreed that until Hill’s performance was complete, Hill would not sell, without Fisher’s written consent, described tracts of land, the dealership or the Mercedes-Benz franchise. Further, should Hill ever elect to transfer, relinquish, abandon or sell any interest in the franchise or either tract of land, Fisher would have the right of first refusal. Fisher consented to the transfer of the Mercedes-Benz franchise to Hill and their sale contract was subject to Mercedes-Benz approving the franchise transfer to Hill. Fisher agreed not to compete for five years within 100 miles. The parties placed the contract documents in escrow with Mcllroy Bank & Trust Company, which was also to handle some disbursements.

Before the execution of the February 28, 1986 Fisher-Hill agreement, Fisher had notified MBNA of his plans to sell to Hill, had submitted the proposed sale agreement, and had stated that if Hill ever defaulted, Fisher wanted to get back the Mercedes-Benz franchise. Mercedes-Benz zone representatives, admittedly without authority to bind Mercedes-Benz to any franchise commitments, told Fisher that in the event of such a default, they saw no reason why Mercedes-Benz would not again award the franchise to Fisher, provided he still qualified.

Significantly, the record reflects that everyone involved knew and understood that MBNA had the exclusive right to select dealers, including successors, and that only the president or vice president of MBNA, headquartered in Montvale, New Jersey, had authority to act with respect to franchises. It was also recognized that MBNA would not discuss granting a franchise to an applicant unless and until the current dealer had approved such a discussion. Accordingly, MBNA would not proceed to process an application until the current dealer had authorized its consideration or MBNA had canceled that dealership. In practice, MBNA did not proceed until there was submitted to it a proposed sale agreement between the terminating dealer and the proposed new dealer.

Hill’s default problems included owing MBNA $31,751.18 and owing Mercedes-Benz Credit Corporation approximately $568,000.00 incident to his having sold automobiles “out of trust.” That is, he sold mortgaged automobiles and retained the proceeds.

When Gerald Jones of Jones Olds-GMC-Buick, Inc. (Jones) observed Hill’s Mercedes-Benz operation going out of business, he became interested in acquiring the Mercedes-Benz franchise in Fayetteville. Hill and Jones entered into an arrangement whereby Jones would pay to MBNA and Mercedes-Benz Credit Corporation a total of $301,000.00, provided that Jones was awarded the Mercedes-Benz franchise and provided further that MBNA and Mercedes-Benz Credit Corporation released Hill “of all debts that Hill owes to either.” Thus, by Jones disbursing $301,000.00 to MBNA and Mercedes-Benz Credit Corporation, Jones would acquire a Mercedes-Benz franchise, and Hill would be released from debts totaling approximately $600,000.00.

From the foregoing, the chancellor determined that MBNA had not contractually obligated itself to deal with Fisher in the matter of the Mercedes-Benz franchise or to issue a franchise to Fisher. Further, the zone or regional officials of MBNA had no authority to bind the company to award a franchise, and Fisher had actual knowledge of such lack of authority.

In sum, the trial judge found that the Fisher-Hill agreement simply did not bind MBNA to any obligation. These findings cut across any suggestion made by Fisher that MBNA could be bound by zone officer representatives in Houston. They negate, as well, Fisher’s claim that MBNA had in some way ratified statements attributed to their representatives that might otherwise have been reasonably relied on by Fisher, leading him to believe MBNA would reassign him the Fayetteville franchise after Hill defaulted. Furthermore, these facts in no way justify Fisher’s argument that a contract obligation should be imposed on MBNA so as to prevent an unjust enrichment.

Each of the chancellor’s determinations was a permissible one and not clearly against the preponderance of the evidence. Accordingly, they cannot be set aside as clearly erroneous under Rule 52 of the Arkansas Rules of Civil Procedure.

Fisher also argues estoppel. While Fisher had high hopes and reasonable expectations that he would be re-awarded a Mercedes-Benz franchise, he, at all times, knew the relevant facts, was not ignorant of the true facts, and knew that he could not rely on his hope and expectations for favorable action. See Foote’s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980).

We mention, too, Fisher’s argument that MBNA violated the Arkansas Franchise Act (Act) and, therefore, it would be fundamentally unfair for MBNA to refuse to renew, reassign or transfer the Fayetteville Mercedes-Benz franchise to Fisher. Under that Act, a franchisee is defined as a “person to whom a franchise is offered or granted.” Ark. Code Ann. § 4-72-202(4). As already mentioned, the chancellor determined, permissably we have held, that MBNA had not contractually obligated itself to deal with Fisher in the matter of the franchise or to issue a franchise to Fisher. While the Act provides certain rights and imposes certain obligations between franchisors and franchisees, Fisher was not a franchisee after he sold his business to Hill. The Act simply is not applicable to the circumstances described in this case.

In sum, we hold the evidence supports the chancellor’s decision that no express or implied contract existed and therefore no judgment against MBNA for specific performance could be granted. Thus, the decision in case E-89-1592 is affirmed.

In case E-89-1524, the balance admittedly owed by Hill to Fisher was in excess of $2,331,000.00 at the time of default. Fisher sought a money judgment on the contract balance due, less the value of assets returned, along with a declaration that the February 28, 1986, contract be rescinded and that the court determine the amount of substitutionary restitution. The chancellor was of the opinion that Fisher had not met the burden of proof so as to entitle him to restitution, and concluded that the circumstances had been so altered by part execution that the parties could not even be closely restored to status quo so that it was impossible to grant rescission. We agree.

Fisher cites the case of Economy Swimming Pool Company v. Freeling, 236 Ark. 888, 370 S.W.2d 438 (1963), for the rule that where there is a material breach of contract, substantial nonperformance, and substantial failure of consideration, the injured party is entitled to rescind the contract and recover money paid thereunder. Fisher asserts that since $2,331,000.00 remained due on the $2,500,000.00 purchase price, Hill’s failure to pay constituted substantial nonperformance of the parties’ February 28, 1986 agreement. Furthermore, Fisher claims he and Hill can be restored to their original positions because Fisher has offered to excuse Hill’s entire debt in exchange for Hill’s return of the automobile dealership and two tracts of land to Fisher.

Hill’s testimony, on the other hand, reflected that he had substantially performed under the parties’ agreement. For example, he testified he was paying ten percent interest on this debt and had paid monthly payments of $24,100.00 for three and one-half years, totaling over $1,000,000.00. And, as has already been discussed, the Mercedes-Benz dealership franchise could not be restored to Fisher.

Even Fisher, in his argument, concedes the difficulty in trying to achieve a correct valuation of assets and application of credits and set-offs in any attempt to put the parties back to their original positions. The chancellor, on these facts, simply found such a goal to be unachieveable, and in our review of the record, we are unable to say his findings are against the preponderance of the evidence. Economy Swimming Pool Company, 236 Ark. 888, 370 S.W.2d 438.

Fisher attempts to avoid the chancellor’s findings on the foregoing rescission issue by arguing the single exception to the “status quo” rule, viz., parties can still rescind a contract if they mutually consent to do so. See Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980). In other words, parties to a contract may at any time rescind it in whole or in part by mutual consent, and the surrender of their mutual rights and the substitution of new obligations is a sufficient consideration. Afflick v. Lambert, 187 Ark. 416, 60 S.W.2d 176 (1933); see also Haering Oil Co. v. Beasley, 221 Ark. 607, 254 S.W.2d 951 (1924) (where Haering and Beasley mutually agreed to terms to end their original contract before its termination date).

In the present case, Fisher and Hill never entered into an agreement to modify or rescind their original contract — either before or after the contract was performed. At one juncture, both parties had sought the rescission remedy, but never came close to arriving at an agreement to resolve their differences. Certainly, Hill never agreed that Fisher was entitled to rescission as was alleged and argued below, and argues now on appeal that the chancellor was correct in denying Fisher’s claim for rescission. Suffice it to say, the rules set out above in Herrick and Afflick are intended to cover those situations where the parties mutually agree to rescind their original agreement — a situation that never occurred between Fisher and Hill.

Fisher also relies on the case of Stanford v. Smith, 163 Ark. 583, 260 S.W. 435 (1924), when generally arguing that the chancellor was not precluded from awarding the remedy of rescission. In that case, Stanford had filed suit to rescind an exchange of property for fraud. Fisher offers no fraud argument on appeal, nor did the chancellor find any fraud on either the part of Hill or Fisher. Another important distinction is that the court in Stanford was able to adjust the inequities so as to award the remedy that Stanford (the injured party) sought and to place Smith, the wrongdoer, in status quo. Again, as discussed previously, the chancellor here simply found it impossible to restore the parties to status quo.

Finally, we turn to Hill’s argument that the chancellor erred in finding Hill had failed to meet his burden of proof on his counterclaims for tort of interference, breach of contract and fraud. None of Hill’s claims have merit.

First, we have reviewed the record, and cannot find where Hill had the chancellor consider and rule on the tort of interference issue. While such a claim appears to have little merit for other reasons, we simply do not address it because it is an issue raised for the first time on appeal.

Next, Hill contends Fisher breached the parties’ February 28, 1986 dealership sale contract which included the property upon which Fisher’s business was situated. Apparently, Fisher and Hill signed their February 28, 1986 contract, agreeing the deeds conveying the business property would be placed in escrow. On the same day, Fisher’s two sons executed deeds to the property in Fisher’s name and these deeds were then held by Fisher’s attorney and not filed for record until Hill later breached the parties’ contract and vacated the business premises. Hill claims Fisher placed deeds in escrow which never conveyed title to the land and, by doing so, breached the parties’ contract, resulting in damages to Hill. We disagree.

The record reflects the parties’ sale agreement provided the deeds to the property would not be transferred until the contract was paid in full, and Hill knew the title to the subject property would remain in Fisher’s name, pending completion of the contract. Hill’s assertions that Fisher’s action concerning the deeds was a material breach of the parties’ contract or that such action constituted fraud is not supported by our reading of the record. Thus, we agree with the chancellor’s dismissal of Hill’s counterclaim and third party complaints.

For the reasons presented above, we affirm the trial court in each of its decisions.

Special Justice Robert S. Lindsey dissents in part. Newbern, J., not participating.

Robert S. Lindsey, Special Justice.

I concur in the denial of specific performance (E-89-1592). It is only in denying rescission that I would reverse and remand (E-89-1524).

The Chancellor was of the opinion that Fisher had not met the burden of proof so as to entitle him to restitution, and concluded that the circumstances had been so altered by part execution that the parties could not even be closely restored to status quo so that it was impossible to grant rescission.

As a general rule, restoration of the status quo is a prerequisite to rescission. Absolute and literal restoration is not required, but only such restoration as is reasonably possible in accordance with equitable principles. Stanford v. Smith, 163 Ark. 583, 260 S.W. 435 (1924).

The Chancellor noted that both parties asked for rescission. Two other filings pinpoint an agreement to rescind. In a motion filed January 9, 1990, Hill included:

3.3 Plaintiff has requested rescission. . . .
4. Plaintiff and defendants concur that rescission is an appropriate remedy. It is therefore appropriate for the court to enter its order granting rescission at the request of both parties.

In a response filed January 11, 1990, Fisher included:

Respondents concur that the court should order rescission of the contract relating to the sale of the Mercedes-Benz - dealership in Fayetteville, Arkansas, . . .

A Restatement comment makes a distinction between an “agreement of rescission” and the exercising of a right of rescission. Restatement (Second) of Contracts § 283 (1981). Arkansas cases recognize this distinction.

In Arkansas, by mutual consent, the parties to a contract may rescind it in whole or in part. In Elkins v. Aliceville, 170 Ark. 195, 279 S.W. 379 (1926), we said:

It is well settled that the parties to a contract may at any time rescind it in whole or in part by mutual consent,. . .

Id. at 200.

In Afflick v. Lambert, 187 Ark. 416, 60 S.W.2d 176 (1933), we said:

It is therefore a well settled rule of this Court that any parties who can make a contract can rescind or modify it by mutual consent. . . .

Id. at 418.

It is urged that these cases only encompass situations where the parties mutually agreed to rescind before any performance, and that the principle is not applicable here. This court, however, quoting the rescission language from both Elkins and Afflick, said that a contract was terminated in midterm by mutual consent in Haering Oil Co. v. Beasley, 221 Ark. 607, 254 S.W.2d 951 (1953). Haering was a bulk sales agent for petroleum products and furnished equipment such as hydraulic lifts, tanks, pumps and air compressors. Beasley owned a filling station and contracted with Haering to sell his petroleum products for one year from September 1,1947, to August 31,1948, and thereafter from year to year, subject to termination at the end of any year upon 30 days notice. In February 1949, Beasley notified Haering that he was going to purchase his petroleum products from Lion Oil Company and asked Haering to invoice the equipment which was at Beasley’s to Lion Oil Company. Haering contended that Beasley could not terminate the contract until August 31 of any year and sought damages for breach of contract. The court said that the contract was terminated by mutual consent when Haering, in accordance with Beasley’s request, sold the equipment to Lion Oil Company and stopped selling petroleum products to Beasley.

Cases that apply the principle that restitution must be substantially in toto recognize a “mutual consent” exception. In Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980), a seller of assets sued the buyer for the balance due. The buyer’s counterclaim included an allegation that the contract had been rescinded. The court denied rescission on the ground that the attempt to rescind was not timely. It was also argued that the buyer had never made an offer of restoration. We said:

A contract cannot be rescinded, except by mutual consent, where the circumstances have been so altered by part execution, that the parties cannot be put in statu quo.

Id., 267 Ark. at 588 (emphasis supplied).

In Bellows v. Cheek, 20 Ark. 424 (1859), we said:

A contract cannot be rescinded without mutual consent, when circumstances have been so altered, by part execution, that the parties cannot be put in statu quo; for if it is to be rescinded at all, it must be rescinded in toto. (Emphasis supplied)

Similar language from this court is in Desha’s Exrs. v. Robinson, Admr., 17 Ark. 228, 238 (1856).

While Stanford v. Smith recognized that generally rescission called for restoration of the status quo, it also pointed out that if full restoration were not possible, the court could proceed with partial restoration and adjust the equities. A one-half interest in a mercantile business in Dumas was a problem. Stanford owned a house and the one-half interest. Smith owned forty acres of land in Texas. A trade was made but when Stanford arrived in Texas, he found the Texas property not as represented. This court held that rescission was in order even though it could not reestablish the mercantile partnership.

The mercantile business was operated as a partnership, and that partnership was, of course, dissolved by the sale of Stanford’s interest therein. We cannot re-establish this partnership, but we can charge Smith with the value of the property which he received, after giving him credit for the debts against it which he assumed.

The one-half interest in the mercantile partnership could not be and was not restored but, nevertheless, the Court ordered rescission and adjusted the equities. Equity will not decline to grant aid “merely because circumstances intervening since the occurrence of the transaction complained of may render it difficult to restore the parties exactly to their original situations,” citing 4 R.C.L. p. 511. I similarly view the Mercedes-Benz franchise.

Although there may be a technical differentiation of a rescission by “mutual consent” before performance, there are forceful reasons for giving effect to separate and joint requests from the parties for equitable rescission. This is particularly so when the parties seem to agree as to what will be adequate compliance with the status quo restoration requirement. Each appears to be suggesting, in general, that Fisher would get return of physical assets still in existence; Hill would be given credit for the $1,270,902.44 paid by him through the escrow accounts; and Fisher would offset the fair rental value of the assets in the enterprise during the period of Hill’s operation. Fisher’s counsel urged that the parties could be placed in status quo “by the Court’s giving appellee Hill credit for ‘monies paid’ and giving appellant Fisher an offset for the ‘fair rental value.’ ”

Hill’s testimony was abstracted in this manner:

If this contract were to be rescinded and both parties restored to their position before execution on February 28, 1986, that would be fine with me. I would get my million dollars back and pay the Fishers for the fair market value and rent for their property for 3 '/i years, or whatever the time is that I had the property.

Obviously, the Mercedes-Benz franchise is out of the picture, whether there is or is not rescission.

One annotator has written:

The object of the rule [restoration of status quo] is theoretically to place the parties in statu quo; but the rule is equitable, not technical, and does not require more than that such restoration be made as is reasonably possible and such as the merits of the case demand.

17A Am. Jur. 2d Contracts § 592 (1991).

Again:

In the event restoration of the status quo is impossible, restoration may be granted if the court can balance the equities and fashion an appropriate remedy that would do equity to both parties and afford complete relief.

17A Am. Jur. 2d Contracts § 597 (1991).

If this is a matter of rescission by “mutual consent,” then it was within the rights of the contracting parties. If there were only requests by both parties for rescission, then under the equitable principles and guidelines established by the courts, restoration of the status quo was not so impossible as to preclude giving effect to what was agreed.

Accordingly, I would reverse and remand E-89-1524 for further proceedings consistent with this opinion.

       When referring to Fisher, we generally mean J. D. Fisher, but at times may include John L. Fisher, James A. Fisher, and Fisher Buick, Inc., d/b/a Fisher Motor Cars, Inc. Hill generally refers to Kelly W. Hill, but may include Thelma C. Hill, his wife, Hill Investment Co., Hill Motor Cars, Inc., and Hill Motor Cars II, Inc.

       This case also stands for the general rule that if there cannot be restoration, a party “is remitted to action for damages.” Here, damages were sought but there is no reference to nor discussion of the damage claim in light of the denial of the rescission claim.


author: Donald L. Corbin, Justice.

text:
    Charles Edward BRADFORD v. STATE of Arkansas
    CR 91-105
    815 S.W.2d 947
    Supreme Court of Arkansas
    Opinion delivered September 30, 1991

      Davis H. Loftin, for appellant.

      Winston Bryant, Att’y Gen., Catherine Templeton, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Charles E. Bradford, was convicted of first degree murder by a Crittenden County Circuit Court jury and sentenced to life imprisonment. On appeal, he challenges the admission of three statements and some photographs. We affirm his conviction.

The evidence in this case reveals that Yvonne Parker was murdered on November 17, 1989. On November 22, 1989, appellant went to the West Memphis Police Department and, after being informed of and waiving his Miranda rights, gave a statement regarding Yvonne Parker’s murder. Appellant denied any involvement in the murder, but admitted that he went to Parker’s trailer on November 17th and found her dead. He told the officers that he panicked and ran from the trailer, taking a bloody towel with him. Toward the end of the statement, Detective James Sudbury told appellant he thought appellant had killed Parker. At that point, appellant told Detective Sudbury he did not want to say any more until he could obtain an attorney. The statement was concluded and appellant was arrested and held pursuant to an outstanding warrant on a drug charge.

On either November 24th or 25th, appellant told a jailer that he wanted to speak to the detectives. The jailer, Rodney Ivy, could not contact the detectives for a few days because of the Thanksgiving holiday. A bond hearing was held on November 27, 1989, and appellant’s father asked the judge for some time to obtain an attorney to represent appellant. The judge granted this request. On November 29th, after being informed that appellant wished to speak with a detective, Detective Sudbury went to see appellant at the jail and asked if he still wanted to speak to a detective. Appellant indicated that he did. Detective Sudbury informed appellant of his rights in the presence of Lieutenant Tony Miller and Detective McCraken. Appellant then signed a waiver of rights form. Following the waiver of his rights, appellant discussed the case with Lieutenant Miller and Detective McCraken. At the end of the discussion, appellant agreed to take a polygraph examination.

A polygraph examination was set up with the Arkansas State Police in Jonesboro and appellant was transported to Jonesboro that afternoon, November 29, 1989. State Police Investigator Charles Beal informed appellant of his rights. Appellant signed a waiver of rights form and gave a statement, telling Investigator Beal that he had also taken Yvonne Parker’s purse when he left the trailer that night. Investigator Beal testified that after the examination was concluded, he read appellant his rights again and appellant then gave a statement admitting that he killed Yvonne Parker.

On November 30, 1989, appellant called Linda McCoy, Yvonne Parker’s sister, from the West Memphis jail and told her that he had killed her sister. Appellant and McCoy lived together for thirteen years and had three children. Appellant’s father was apparently unable to obtain an attorney for him, and counsel was appointed to represent him on December 1,1989. Appellant was charged with first degree murder on January 12, 1990.

Appellant filed a motion to suppress the November 22,1989 statement, the statement following the polygraph examination on November 29,1989, and his statement to Linda McCoy. After a hearing on the motion to suppress, the trial court ruled that all three statements were admissible into evidence.

Appellant first contends the trial court erred by admitting the November 22, 1989 statement to the West Memphis Police Department. Appellant argues this statement should' have been suppressed because he was arrested on November 23, 1989, and ' an attorney was not appointed to represent him until December 1, 1989. He contends this delay, from the time of his arrest until the time counsel was appointed to represent him, violated his constitutional right to counsel; thus, the statement made to the West Memphis police on November 22, 1989, should be suppressed. Appellee responds with the argument that appellant waived his right to counsel prior to giving the November 22,1989 statement.

The burden is on the state to establish that appellant waived his rights and all doubts must be resolved in favor of the individual rights and constitutional safeguards. Sutton v. State, 262 Ark. 492, 559 S.W.2d 16 (1977). The inquiry into the validity of appellant’s waiver of his Miranda rights, specifically his right to counsel, has two distinct dimensions. Colorado v. Spring, 479 U.S. 564 (1987); Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989). The waiver must be voluntary and it must be made knowingly and intelligently. Colorado, supra; Burin, supra.

The requirement that a waiver of Miranda rights be voluntary is concerned with coercive police activity. Burin, supra. As appellant never alleged any coercive activity by the police in connection with this statement, we need only consider whether appellant waived his right to counsel knowingly and intelligently prior to giving the statement. Factors bearing on this determination include appellant’s age, experience, education, background, and the length of detention. Burin, supra. Appellant was thirty-three years old and had a twelfth-grade education at the time he gave the statement in question. He had been arrested previously for a drug offense. The statement’began at 11:21 p.m. on November 22, 1989, and was concluded at 12:03 a.m. on November 23, 1989. As stated previously in this opinion, appellant signed a waiver of rights form prior to giving the statement. When he exercised his right to counsel during the statement, the statement was quickly concluded.

Counsel had not been appointed for appellant because he indicated he was trying to obtain his own counsel. On November 22,1989, appellant told the West Memphis police officers that he did not want to talk any more until he got himself an attorney. Similarly, at appellant’s bond hearing on November 27,1989, his father asked the judge for some time to obtain an attorney to represent appellant. At no time did appellant indicate that he wanted appointed counsel. Appellant’s father was apparently unable to obtain counsel for him, thus counsel was appointed to represent him on December 1, 1989. We conclude the statement was not taken in violation of appellant’s right to counsel, and the trial court correctly denied the motion to suppress it.

For his second argument on appeal, appellant contends the trial court erred in admitting the statement he made on November 29,1989, to Investigator Beal after taking the polygraph test. Investigator Beal testified that at 5:18 p.m. on November 29, 1989, he advised appellant of his rights. Investigator Beal testified that appellant indicated to him verbally that he understood those rights and that he signed the rights form. Beal testified further that no force, promises, threats, or coercion were used to get appellant’s signature on the form. After waiving his rights and before taking the polygraph examination, appellant made a brief statement, admitting that he had taken Yvonne Parker’s purse from the trailer on the night of the murder.

Investigator Beal then conducted a polygraph examination on appellant. Following the examination, appellant made another statement to investigator Beal admitting that he killed Yvonne Parker. Investigator Beal testified at trial that he read appellant his rights before appellant gave this incriminating statement. Investigator Beal then wrote the statement down in appellant’s exact words and went over each word with him. He testified that he observed appellant sign each page of the statement and again at the end of the statement.

Appellant contends that because the results of his polygraph examination were inadmissible, this incriminating statement was also inadmissible as it resulted from his polygraph examination. We have specifically held that incriminating statements and admissions made freely and voluntarily after or as a result of a polygraph examination are admissible into evidence, if they are not otherwise involuntary. See Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, 440 U.S. 911 (1979). Appellant does not allege the statement was involuntary in any manner.

The state submits that the statement appellant made following his polygraph examination was admissible under Gardner. Although appellant had invoked his right to counsel a few days prior to taking the polygraph examination, he reinitiated contact with the police on November 29,1989. He then waived his rights knowingly, intelligently, and voluntarily prior to making this statement after the polygraph examination. Accordingly, the trial court correctly allowed the statement to be introduced into evidence.

As his third argument, appellant contends the trial court erred in allowing the victim’s sister to testify that appellant called her from the West Memphis jail on November 30, 1989, and admitted that he had killed her sister. Appellant sought to have this statement suppressed on the basis that he was in custody at the time this call was made and that he was without the benefit of counsel.

We find no merit in this argument. The requirements of Miranda v. Arizona, 384 U.S. 436 (1966), do not come into play unless a defendant is subjected to custodial interrogation or the functional equivalent thereof. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Appellant made this statement to a third party. We cannot say this phone call was the functional equivalent of custodial interrogation. The trial court did not err in denying the motion to suppress the statement made to the victim’s sister.

For his final argument, appellant contends the trial court erred in admitting photographs of the victim’s body into evidence. He argues the photograph depicting the victim’s neck bent backward to demonstrate her cut throat and the photograph demonstrating eight stab wounds into the heart area had a prejudicial effect that outweighs the probative value of the photographs.

Both the state and the defense rely on the rule announced in Berry v. State, 290 Ark. 223, 227, 718 S.W.2d 447, 449 (1986) where this court stated:

The fact that photographs are inflammatory is not alone sufficient reason to exclude them. [Citations omitted.] Inflammatory pictures are “admissible in the discretion of the trial judge, if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony, or to corroborate testimony.” [Citation omitted.]

The two photographs may have enabled the medical examiner to better describe the wounds that contributed to the victim’s death and demonstrate to the jury the nature and extent of the wounds she suffered, as well as the savagery of the attack on her. We stated in Cash v. State, 301 Ark. 370, 784 S.W.2d 166 (1990), that pictures may also be useful to the jury by showing the nature and extent of wounds and savagery of the attack on the victim.

The admissibility of photographs is in the sound discretion of the trial judge, whose decision will not be set aside absent an abuse of that discretion. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989). We do not find the trial court abused its discretion in admitting the photographs into evidence.

As required by Ark. Sup. Ct. R. 11 (f), the objections decided adversely to appellant have been abstracted; we have reviewed these objections and find that none of them merits reversal.

Affirmed.