author: Alex G. Streett, Special Justice. Hickman and Purtle, JJ.,

text:
    Jacqueline Kight WILSON v. John Lofton WILSON
    86-296
    741 S.W.2d 640
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987
    [Rehearing denied February 1, 1988.]

      Eichenbaum, Scott, Miller, Crockett, Liles & Heister, P.A., by: C. Richard Crockett, for appellant.

      Dodds, Kidd, Ryan & Moore, by: J.L. Kidd, for appellee.

      Holt, C.J., and Newbern, J., not participating.

   Alex G. Streett, Special Justice.

This is a divorce case which involves an interpretation of Ark. Stat. Ann. § 34-1214 (Supp. 1985) and our jurisdiction arises from Arkansas Supreme Court and Court of Appeals Rule 29(l)(c). The appellant raises five points for reversal.

Appellant, Jacqueline Right Wilson, and appellee, Dr. John Lofton Wilson, were married on the 16th day of June, 1962. They lived together as husband and wife from that date until approximately April 1980. Appellant claimed the separation was because of appellee’s admitted infidelity, and appellee, though admitting the infidelity, asserted other reasons. Appellee began medical school in 1960, and was therefore in attendance at medical school at the inception of the parties’ marriage. Upon graduation, appellee did a one-year internship and then completed a four-year residency in 1969, obtaining a specialization in orthopedic surgery. Appellee undertook the full-time practice of an orthopedic surgeon in July 1969, when he was hired by Orthopedic Associates, Inc., where his employment has been continuous.

Appellant was employed a majority of the time during appellee’s pursuance of a medical education and contributed income to the marriage. In addition, appellant contributed to the marital estate in the approximate amount of $121,000.00, which was money she had received by inheritance or advancement, and which was commingled with the parties’ marital assets.

The court granted appellant a divorce on her counterclaim on June 24, 1983, and reserved jurisdiction with respect to the division of property, alimony, child support and attorney’s fees. At the same time, the court ordered appellee to pay temporary alimony and child support in the amount of $3,649.00 per month. On July 20, 1984, this monthly amount was reduced by $1,145.00, which reduction represented a monthly payment made towards the satisfaction of a promissory note. Finally, the temporary alimony was reduced to $1,526.00 per month, and child support was fixed at $600.00 per month, effective September 1, 1984. The alimony was discontinued entirely in June of 1986, but child support was continued at $500.00 per month. At the final hearing, the court fixed the value of appellee’s stock in Orthopedic Associates, Inc., at $20,000.00, and awarded appellant $10,000.00 as her one-half interest. The court also awarded $7,500.00 in attorney’s fees to appellant’s attorney, to be paid by appellee.

We will discuss appellant’s points in reverse order.

1. THE COURT ERRED IN ITS AWARD OF ATTORNEY’S FEES.

Appellant’s attorneys submitted affidavits to the trial court, showing attorney’s fees incurred of $34,028.10, and expenses of $3,502.27. The court awarded appellant’s attorneys a fee of $7,500.00. The trial court has considerable discretion in the allowance of attorney’s fees in a divorce case. Richardson v. Richardson, 280 Ark. 498, 659 S.W.2d 510 (1983). Ford v. Ford, 272 Ark. 506, 616 S.W.2d 3 (1981). The chancellor is in a better position to evaluate the services of counsel than an appellate court, and, in the absence of clear abuse, the chancellor’s fixing of an attorney’s fee will not be disturbed on appeal. Id. at 518, 616 S.W.2d at 9; Wiles v. Wiles, 246 Ark. 289, 437 S.W.2d 792 (1969).

Unless the chancellor finds it to be equitable, there is no compelling reason for the husband to automatically pay the wife’s attorney’s fees. Meinholz v. Meinholz, 283 Ark. 509, 678 S.W.2d 348 (1984). We cannot say the chancellor abused his discretion in awarding a fee of $7,500.00. We do, however, award appellant an additional $2,500.00 as attorney’s fees for services in this court.

2. THE COURT ERRED IN NOT AWARDING ALIMONY TO APPELLANT.

From the time of the parties’ separation, in April 1980, until their divorce decree and support order of June 24,1980, appellee paid the appellant $195,271.00, plus payments on notes and taxes in the amount of $153,000.00. The June 24th decree ordered appellee to pay $3,649.00 per month in temporary alimony and support, which eventually was reduced on two occasions, the last of which established monthly alimony payments at $1,526.00, and support payments at $600.00, effective September 1,1984. In addition to this alimony and support, appellant received rental income in the amount of $275.00 per month and income from non-marital property in the approximate sum, including interest, of $1,000.00 per year. In considering appellant’s entitlement to alimony, the trial court also considered a number of other property interests of the parties, as well as appellant’s age, forty-five years, and the fact that she was a licensed medical technician. During the pendency of this action, the trial court, without success, encouraged appellant to seek employment. The trial court terminated alimony payments effective after July 1986.

The award of alimony in a divorce action is not mandatory but is a question which addresses itself to the sound discretion of the chancellor. Unless the chancellor clearly abuses that discretion, we do not reverse. See Neal v. Neal, 258 Ark. 338, 524 S.W.2d 460 (1975), and Stout v. Stout, 4 Ark. App. 266, 630 S.W.2d 53 (1982). Here, the chancellor, in his orders and decrees, went into detail concerning the parties’ particular circumstances. We cannot say the chancellor abused his discretion in discontinuing alimony.

3. THE TRIAL COURT ERRED IN NOT CONSIDERING THE BALANCE OF THE PROFIT SHARING AND PENSION PLANS AS OF JUNE 30, 1983, AS MARITAL PROPERTY, AS WELL AS ANY CONTRIBUTIONS MADE TO THE PLANS FOR THE BENEFIT OF THE APPELLEE AFTER THE DIVORCE.

The parties were divorced on June 25, 1983. Increases in profit sharing and pension plans were credited to appellee’s account on June 30,1983, five days after the decree of divorce was entered. Ark. Stat. Ann. § 34-1214(a)(1) (Supp. 1985) clearly provides the marital property should be distributed at the time of the divorce. Accordingly, it is not an abuse of the chancellor’s discretion to ascertain the extent of the marital property as of the date of the divorce, and evaluate it as of that date, as well. Askins v. Askins, 288 Ark. 333, 704 S.W.2d 632 (1986). Although appellee was one hundred percent vested as to contributions already distributed to his pension and profit sharing account when the parties divorced, further contributions were contingent upon his continued employment. Accord Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984) (wherein the court upheld the trial court’s decision applying all the husband’s contributions made to the plan after the divorce to his benefit only). We also note that there is no showing that the appellee had in any way defrauded appellant by holding back any contributions made to his account until after the divorce. To the contrary, the evidence reflects that it was standard procedure for the corporation to add to the plans at the end of the fiscal year which was June 30th. On these facts, we believe the chancellor was correct in deciding those contributions were not marital property when made to appellee’s profit sharing and pension plans after the date of the divorce.

4. THE COURT ERRED IN NOT HOLDING THAT THE BONUS AWARDED APPELLEE FOR THE YEAR ENDING JUNE 30, 1983, TO BE MARITAL PROPERTY.

The situation in the previous point is similar to the one here, except that we now must consider a bonus given appellee on June 30, 1983, again five days after the date of the divorce. In contrast to the contributions made to appellee’s pension and profit sharing plans, the record reflects the appellee had acquired an accrued or fixed interest in the bonus which, appellee concedes, was based on the amount of work he produced. In fact, appellee’s employment agreement with Orthopedic Associates, Inc. required the company to pay appellee an incentive bonus based on his productivity and the profitability of the company. Clearly, appellee’s bonus was an award for services rendered in the past and only the exact amount was left for determination at the end of the corporation’s fiscal period. Appellee possessed an enforceable right to the bonus and Orthopedic Associates, Inc. could not unilaterally deprive appellee of it by terminating the employment relationship. Day, 281 Ark. at 267, 663 S.W.2d at 721, 722. Because most of appellee’s bonus accrued and, therefore, was acquired during his marriage to appellant, we hold the chancellor abused his discretion in finding that none of the bonus was marital property. Therefore, we reverse and remand this cause on this point.

5. THE COURT ERRED IN NOT TREATING (A) APPELLEE’S MEDICAL DEGREE, LICENSE, OR INCREASED EARNING CAPACITY AS MARITAL PROPERTY (B) HIS MEDICAL PRACTICE, INCLUDING GOODWILL, AS MARITAL PROPERTY, OR (C) ALTERNATIVELY, IN NOT CONSIDERING THE VALUE OF GOODWILL IN VALUING THE STOCK (APPELLEE’S INTEREST) IN ORTHOPEDIC ASSOCIATES, INC.

In Meinholz v. Meinholz, 283 Ark. 509, 678 S.W.2d 348 this court affirmed the chancellor’s decision that the husband’s “enhanced business career” was not marital property. In doing so, the court discussed the case of Inman v. Inman, 578 S.W.2d 266 (Ky. Ct. App. 1979), which set out the test or factors that had to be met before a spouse’s increased earning power, represented by a professional degree or license, could be counted as marital property. The test was three-fold: (1) there was no accumulated marital property; (2) the spouse who subsidized the degree is ineligible for maintenance; and (3) the court had to consider the extent to which the non-license holder had already or otherwise benefitted financially from his or her spouse’s earning capacity. In applying that test to the facts in Meinholz, we found that Mrs. Meinholz had been married to her husband for eighteen years, and had already reaped benefits from his increased earning capacity. Also, Mrs. Meinholz was eligible for maintenance, which, in fact, had been ordered by the trial court.

Even if we were willing and ready to declare that a professional license or degree should be treated as marital property, the circumstances here simply do not meet the test or factors noted in Meinholz. The record reflects a marriage of eighteen years and considerable accumulated marital property, which has been divided, including a residence on several acres, two other farms, automobiles, cattle, horses and equipment. Appellant also was awarded an interest in the appellee’s pension and profit sharing plan, and still has other property interests to be determined and awarded.

Concerning her eligibility for maintenance, appellant already has received substantial alimony. For over three years, appellee voluntarily gave $6,000.00 per month maintenance and support for the appellant and the children. As previously discussed, the alimony awarded appellant continued in a reduced form until July 1986. In sum, appellant had received maintenance and support payments for a six-year period.

Finally, in determining whether appellant has already benefitted financially from her spouse’s earning capacity, we note again that the parties had been married for eighteen years, and during that time, she had household help three days a week and a handyman to do yard work and minor repairs. For several years she was able to engage in the hobby of raising, breeding and showing horses. Appellant was also provided automobiles, the last two being Cadillacs. This case, as was the situation in Meinholz, cannot be analogized to the typical professional license case, where the divorce occurs at the point where the increased earnings begin. Therefore, in considering and applying the test set out in Meinholz, the chancellor here was unerringly correct in not treating appellee’s medical degree, license or increased earnings capacity as marital property.

Appellant’s remaining two points for reversal will be considered jointly, since they are so closely intertwined. As restated, the appellant contends that the lower court erred in not treating appellee’s medical practice, including goodwill, as marital property, or alternatively, in not considering the value of goodwill when determining the value of appellee’s interest in Orthopedic Associates, Inc.

The appellee was a stockholder, president and director of Orthopedic Associates, Inc. He was one of three stockholders and owned one-third of the stock. Orthopedic Associates, Inc. had an equity of $96,038.93, plus receivables ranging from $200,000.00 to $350,000.00. James McAnally, who was employed by Orthopedic Associates, P.A. since 1981, and who also held the job of office manager of Orthopedic Associates, Inc., testified that the receivables of the corporation were somewhere between $250,000.00 and $350,000.00. The corporation had an average write-off to loss of about ten percent, but its actual gross collection rate was only around eighty-five percent, which gave the company a fifteen percent total loss. The appellee testified that the accounts receivable ranged from $200,000.00 to $300,000.00.

Dr. Rawleigh Ralls, president of Educational Research Associates, Inc., was qualified as an expert regarding economics, finance and statistics. He testified, over appellee’s objection, as to the fair market value of appellee’s practice. Appellant’s attorney correctly pointed out that the value of appellee’s practice, or the estimated value of his stock in Orthopedic Associates, Inc., was one of the issues before the court. Dr. Ralls testified that the value of appellee’s practice at that time was $716,954.91. In arriving at this figure, Dr. Ralls considered appellee’s earning history for the past ten years, and converted the past earnings into 1986 dollars, so that Ralls could assess the past income figures in terms of equivalent income today that would have the identical purchasing power. Ralls added appellee’s ten years’ earnings, divided by ten, and obtained an average value of $238,948.97; he then used a multiple of three times appellee’s average minimum earnings, which yielded a value of $716,954.91. Dr. Ralls testified that three times the earnings is one of the rules of thumb that is used by practice management consultants to value medical practices or specialty medical practices. Dr. Ralls candidly admitted that he had mistakenly included appellant’s earnings in arriving at the value of appellee’s practice, but he denied the error made any material difference in his figures.

Appellee failed to introduce any value of the corporate stock or his equity in Orthopedic Associates, P.A., except that which was reflected in one of the parties’ joint exhibits. The parties, in that exhibit, stipulated appellee’s equity ownership to be $20,000.00, exclusive of his interest in the company’s pension and profit sharing plan; this stipulation was made in August 1983. It was, however, followed by other, but conflicting, joint exhibits. Those later exhibits, introduced at trial, contained stipulations listing all controverted and non-controverted marital property, and, in doing so, listed both the Orthopedic Associates, P.A. and appellee’s medical practice as controverted items. Conversely, neither of these items were listed as non-controverted items on those joint exhibits. Because these later exhibits reflect the parties’ stipulation and understanding at the time of the trial, we believe they clearly were controlling.

Although some difference exists over what the parties had agreed upon at trial, appellee obviously relied on the company’s stock purchase agreement, which was executed on February 2, 1982, between him, Orthopedic Associates, Inc. and the company’s other principals. As can be readily discerned, appellee executed the agreement about sixteen months after the parties filed for divorce. That agreement provided that if the stockholder terminated his employment, he then was required to sell, and the corporation was required to buy, all of his stock for $20,000.00. The agreement further provided that while a stockholder is employed by the corporation, before any stock owned by him may be sold to a third party, the stock must first be offered to the corporation for a redemption at the same price and upon the same terms offered by a bona fide prospective purchaser of such shares.

After our careful study of the evidence bearing on the value of appellee’s interest in Orthopedic Associates, Inc., we can only conclude that appellee’s stock was worth more than the $20,000.00 provided in the company’s stock purchase agreement and that the chancellor erred in valuing the stock in that amount.

While we conclude that the evidence clearly reflects that appellee’s stock exceeds a value of $20,000.00, we also find that there is insufficient evidence in the record to place a value on that stock. First, we note the chancellor expressed some doubts regarding Dr. Rail’s value testimony, but, aside from those doubts, he apparently gave little consideration to that testimony since the chancellor merely accepted the $20,000.00 value set out in the stock purchase agreement and the parties’ first stipulation. Second, while appellant offered value testimony concerning appellee’s medical practice, appellee offered none because he relied entirely on the parties’ earlier stipulation and the $20,000.00 figure in the stock purchase agreement. Of course, in this appeal, we have held the chancellor erred in relying on that $20,000.00 amount. In view of these circumstances, we believe fairness requires our remand of this cause to permit both parties to fully develop their value testimony regarding the appellant’s marital interest in the corporate stock.

Finally, we turn to appellant’s argument concerning professional goodwill, and whether goodwill should be treated as marital property. The prevailing view appears to be that goodwill of a professional practice or business is a business asset with a determinable value and is marital property, subject to division in a divorce proceeding. Wisner v. Wisner, 129 Ariz. 333, 631 P.2d 115 (Ct. App. 1981 In re Foster, 42 Cal. App. 3d 577, 117 Cal. Rptr. 49 (1974); In re Marriage of Nichols, 606 P.2d 1314 (Colo. Ct. App. 1979); In re Marriage of White, 98 Ill. App. 3d 380, 424 N.E.2d 421 (1981); Heller v. Heller, 672 S.W.2d 945 (Ky. Ct. App.1984); In re Marriage of Hull, 712 P.2 1317 (Mont. 1986); Dugan v. Dugan, 92 N.J. 423, 457 A.2d 1 (1983); Hurley v. Hurley, 94 N.M. 641, 615 P.2d 256 (1980); Weaver v. Weaver, 12 N.C. App. 409, 324 S.E.2d 915 (1985); In re Marriage of Fleege, 91 Wash.2d 324, 588 P.2d 1136 (1979). Some jurisdictions, however, have held that professional goodwill does not constitute property and should not be considered as marital property divisible in such proceedings. See Powell v. Powell, 231 Kan. 456, 648 P.2d 218 (1982); Nail v. Nail, 486 S.W.2d 761 (Tex. 1972); Holbrook v. Holbrook, 103 Wis. App. 327, 309 N.W.2d 343 (1981).

Recently, the Nebraska Supreme Court made a thorough analysis of when goodwill is an asset and is marital property subject to division in a divorce action. See Taylor v. Taylor, 222 Neb. 721, 386 N.W.2d 851 (1986). The court in Taylor pointed to the difficulty that arises in valuing a professional practice when goodwill is likely to depend on the professional reputation and continuing presence of a particular individual in that practice. Id. at 729, 386 N.W.2d at 857. In a further discussion of that point, the court said:

[W]here goodwill is a marketable business asset distinct from the personal reputation of a particular individual, as is usually the case with many commercial enterprises, that goodwill has an immediately discernible value as an asset of the business and may be identified as an amount reflected in a sale or transfer of such business. On the other hand, if goodwill depends on the continued presence of a particular individual, such goodwill, by definition, is not a marketable asset distinct from the individual. Any value which attaches to the entity solely as a result of personal goodwill represents nothing more than probably future earning capacity, which, although relevant in determining alimony, is not a proper consideration in dividing marital property in a dissolution proceeding.

Id. at 731, 386 N.W.2d at 858.

We believe the view expressed in Taylor is a sound one, and conclude that, for goodwill to be marital property, it must be a business asset with value independent of the presence or reputation of a particular individual — an asset which may be sold, transferred, conveyed or pledged. Thus, whether goodwill is marital property is a fact question and a party, to establish goodwill as marital property and divisible as such, must produce evidence establishing the salability or marketability of that goodwill as a business asset of a professional practice.

We reverse and remand this cause regarding the trial court’s erroneous rulings as to the appellee’s bonus and valued interest in Orthopedic Associates. Because these property interests must be reconsidered by the chancellor, we are aware that any readjustment of these interests also might affect his earlier decision concerning the issue of alimony. Therefore, we remand with direction that the chancellor may consider the alimony issue along with the other two matters on remand.

Holt, C.J., and Newbern, J., not participating.

Hickman and Purtle, JJ.,

concur (see Meinholz v. Meinholz, 283 Ark. 509, 678 S.W.2d 348 (1984)).

Special Justice Charles Walker joins in the opinion.

       Mrs. Meinholz analogized her situation to the professional license cases even though her husband had no degree or license. In disposing of her argument, this court referred to the test in Inman v. Inman.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Daniel Eugene REMETA v. STATE of Arkansas
    CR 87-214
    740 S.W.2d 928
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987

      Appellant, pro se.

      Douglas, Craft & Shock, by: J. Randolph Shock, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

Daniel Eugene Remeta was sentenced to death by the Crawford County Circuit Court on May 5, 1987. Remeta is apparently in the Florida Penitentiary where he is on death row.

Remeta has petitioned us to allow him to dismiss his appeal and be executed. He asks his court appointed attorney, J. Randolph Shock, be dismissed. Mr. Shock asks for directions.

In Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), we upheld Arkansas’ capital felony law. One question to be resolved was regarding the absence of a provision for mandatory appellate review. In Collins we implied that the death penalty would not be imposed without an appeal or a knowing and intelligent waiver of appeal by the defendant.

This matter is remanded for the trial court to determine, in his discretion, if the petitioner knowingly and intelligently waives his appeal. The judge is authorized to conduct any hearing necessary to arrive at a decision.

Court appointed counsel will remain attorney of record until relieved.

The execution of the death penalty is stayed pending this hearing.


text:
    Lester Clayton SANDERS, Jr. v. STATE of Arkansas
    740 S.W.2d 928
    Supreme Court of Arkansas
    Opinion delivered December 21, 1987

      No response.
   Per Curiam.

Appellant, Lester Clayton Sanders, Jr. by his attorney, Josef V. Hobson, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the ninety-day limit for filing the record in this Court. See Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Raenita McKIMM v. STATE of Arkansas
    742 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered January 13, 1988

      D. Scott Hickam, for petitioner.
    No objection.
   Per Curiam.

Petitioner, Raenita McKimm, by and through her attorneys, Hickam & Williams, P.A., has filed a motion for rule on the clerk. Her attorney, D. Scott Hickam, admits that the record was submitted late due to his miscalculation of the seven-month maximum limit for filing the record in this Court. See Ark. R. App. P. 5.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    William Wade ALLEN v. STATE of Arkansas
    CR 87-83
    742 S.W.2d 886
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      Kenneth George Fuchs, for appellant.

      Steve Clark, Att’y Gen., by: Frank J. Wills III, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, William Wade Allen, was convicted of aggravated robbery and sentenced as a habitual offender to fifty years imprisonment. On appeal, Allen argues his case should have been dismissed for lack of speedy trial, enhancement of his sentence was wrong, his sentence should have been credited with jail time served, and a mistrial should have been granted because the state failed to disclose discoverable material. We find these arguments meritless and affirm.

On June 1, 1984, the Sav-On Drug Store in Conway, Arkansas, was robbed. A man entered the store, walked back to the pharmacy, placed a gun in a customer’s back, and then told the pharmacist, Edgar Clark, to open the drug storage door. The customer was told to lie down while the robber walked into the store room with Clark. The robber pointed the gun at Clark and ordered him to put all the Class II narcotics in a pillow case.

The robber left the drug store through the back door. As he was leaving, an employee of the store, Jerry Webb, ran out the front door and around the building and observed the robber get on a motorcycle and ride away. In making his get away, he lost his helmet a block or so from the drug store. A patrolman arrived about that time, and Webb got in the police car to pursue the robber. The helmet was retrieved, and fingerprints taken from it matched Allen’s. The motorcycle was found the next day in a parking lot. A photographic lineup was conducted, and both Webb and Clark identified Allen as the man who robbed the drug store.

A felony information was filed on June 12, 1984, charging Allen with aggravated robbery. Allen was arrested on October 2, 1984, in Dallas County, Texas, on this charge and on another aggravated robbery charge from Jackson, Tennessee. Allen refused to sign a waiver of extradition to Arkansas and fought extradition to Tennessee. He was transported to Tennessee in November, 1985. His trial in May, 1986, resulted in an acquittal. Subsequently, Allen waived extradition to Arkansas. He arrived in this state on June 13,1986, and was tried on October 10,1986. A jury found him guilty and sentenced him as a habitual offender to fifty years imprisonment.

I. SPEEDY TRIAL

Allen argues he was denied his right to a speedy trial on the charge of aggravated robbery. The time for trial is determined by Ark. R. Crim. P. 28.1. Subsection (c) provides:

Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, including release from incarceration pursuant to subsection (a) hereof, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months from the time provided in rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

The date the charge is filed begins the time period for a speedy trial. Ark. R. Crim. P. 28.2(a); Howard v. State, 291 Ark. 633, 121 S.W.2d 830 (1987). The information was filed on June 12, 1984, and Allen’s trial in Arkansas was held on October 10,1986, approximately twenty-eight months later.

Once the accused has shown that the trial is to be held after the speedy trial period expired, the state has the burden of showing the delay is legally justified. Harwood v. Lofton, 288 Ark. 173, 702 S.W.2d 805 (1986); Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986); Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982). The state claims the delay in bringing Allen to trial was justified for two reasons: he was on trial on another charge in a different state and he fought extradition to Arkansas. The state submits when computing the eighteen month period, periods of delay resulting from the trial in Tennessee and resisting extradition to Arkansas are excludable. We agree. Ark. R. Crim. P. 28.3 provides:

The following periods shall be excluded in computing the time for trial:
(a) The period of delay resulting from other proceedings concerning the defendant, including . . . trials of other charges against the. defendant ....
* * *
(e) The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial. (Emphasis added.)

A delay of approximately six months was due to Allen’s trial on another charge. Allen was extradited to Tennessee on November 20, 1985, to face trial for aggravated robbery. His trial was held on May 29, 1986. Thus, that period of approximately six months is excludable. Ark. R. Crim. P. 28.3(a); see Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983).

Delays due to resisting return to Arkansas for trial are also excluded. Ark. R. Crim. P. 28.3(e); O’Riordan v. State, 281 Ark. 424, 665 S.W.2d 255 (1984); Faulk v. State, 261 Ark. 543, 551 S.W.2d 194 (1977).

The question before us is whether or not the appellant’s failure to waive extradition from Texas constitutes, within the meaning of our rule, resisting return to Arkansas for trial. Our constitution provides that an accused shall enjoy the right to a speedy trial. Ark. Const, art. 2, § 10. In pursuit of this right, we have adopted rules to protect the interest of the defendants, as well as the public. In doing so, we have provided that defendants shall be brought to trial within a specified time or the charge will be dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1(a). On the other hand, we have placed responsibility on the defendant to be available for trial, excluding such time delays which result from his resisting appearance for trial. Ark. R. Crim. P. 28.3.

Although Allen had an opportunity at the time of his arrest in Texas to return to Arkansas and obtain his “speedy trial,” he refused to sign a waiver of extradition burdening both our state and Texas with extradition proceedings. Such conduct on his part amounts to resisting return to this state for trial within the framework of our rule. Other jurisdictions have taken a similar posture. In State v. Haynes, 456 N.E.2d 1279 (Ohio App. 1982), the Ohio court stated: “We find it incongruous for appellant to contest her failure to be brought to trial when she has actively sought to prevent her trial from proceeding by becoming a fugitive and by refusing to waive time-consuming extradition proceedings.” See also State v. Mick, 229 Kan. 157, 621 P.2d 1006 (1981). The same holds true in this case.

The thirteen month period between Allen’s arrest and his extradition to Tennessee is excludable. When we add together the excludable periods while the appellant was in Texas and in Tennessee, we find that he was tried within the statutory period of time.

Citing Shaw v. State, 18 Ark. App. 243, 712 S.W.2d 338 (1986), Allen makes the additional argument that reversal is mandated by virtue of the trial court’s failure, either in its written order or in docket entries, to set forth all excluded periods as required by Rule 28.3(i), which provides:

All excluded periods shall be set forth by the court in a written order or docket entry. The number of days of the excluded period or periods shall be added to the number of months applicable to the defendant as set forth in Rule 28.1(a), (b) and (c) to determine the limitations and consequences applicable to the defendant.

We find it unnecessary to reach the merits of this issue as our review of the abstract on appeal fails to disclose that the argument was ever presented to the trial court. We do not consider arguments made for the first time on appeal. Stephens v. State, 293 Ark. 366, 738 S.W.2d 91 (1987).

II. SENTENCE ENHANCEMENT

Allen’s sentence was enhanced pursuant to Ark. Stat. Ann. § 41-2102(3)(d) (Supp. 1985), which provides: “Upon pleading guilty or being found guilty the fourth or subsequent time of aggravated robbery with a deadly weapon, such person shall be imprisoned for no less than fifty (50) years.” The jury found Allen guilty of his fourth aggravated robbery charge and sentenced him to fifty years. Allen contends this was wrong as the statute applies only to convictions of aggravated robbery with a deadly weapon and none of his convictions specify he committed the offense with a deadly weapon.

Allen argues the felony information in this case charged him with the offense of robbery instead of aggravated robbery. The information clearly charged: “William Wade Allen. . .with the crime of violating Ark. Stat. Ann. § 41-2102 (Aggravated Robbery). . . .” The information then described the offense by tracking the language of the statute: “ [Allen] committed robbery and represented by word or conduct that he was armed with a deadly weapon, to-wit: committed robbery as defined at Ark. Stat. Ann. § 41-2103, at Sav-On Drug while representing he was armed with a deadly weapon.” The information further stated Allen was charged with a Class Y felony (aggravated robbery). Robbery is a Class B felony.

Allen wrongly contends that this information did not charge that he committed the robbery with a deadly weapon, but only that he represented that he had a deadly weapon. There is sufficient evidence that Allen was convicted of aggravated robbery with a deadly weapon: the verdict form following the sentencing phase of the trial, the judgment and commitment order, a jury instruction, and the testimony of two witnesses all reflect that Allen used a gun during the robbery.

In arguing against enhancement, Allen attacks the state’s proof of the three prior convictions for aggravated robbery with a deadly weapon. Ark. Stat. Ann. § 41-1003 (Supp. 1985) sets out the required proof for prior convictions. It provides in pertinent part:

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. The following are sufficient to support a finding of a prior conviction or finding of guilt:
(1) a duly certified copy of the record of a previous conviction or finding of guilt by a court of record; or. . . .

The state has the burden to prove Allen’s prior convictions. Elmore v. State, 268 Ark. 225, 595 S.W.2d 218 (1980), however, the state is not limited to the methods of proof set out in the statute. Parker v. State, 258 Ark. 880, 529 S.W.2d 860 (1975). On appeal the test is whether there is substantial evidence from which the jury could have found that Allen was previously convicted of aggravated robbery with a deadly weapon. Leggins v. State, 267 Ark. 293, 590 S.W.2d 22 (1979).

State’s Exhibits #2 and #3 contain documents of two aggravated robbery convictions in Pulaski County. Included in each exhibit is a felony information charging Allen with aggravated robbery with a deadly weapon, a docket entry stating Allen was charged with aggravated robbery and showing he changed his plea from not guilty to guilty, a commitment order to the Department of Correction, and a judgment stating Allen withdrew his not guilty plea and entered a guilty plea to aggravated robbery.

State’s Exhibit #4 contains documents of a conviction in Craighead County consisting of a felony information charging Allen with aggravated robbery with a deadly weapon, the commitment to the Department of Correction evidencing a guilty plea to aggravated robbery, and a judgment stating that Allen pled guilty to aggravated robbery.

The fact that each document does not state Allen was charged or convicted with aggravated robbery with a deadly weapon is not fatal. In Guzman v. State, 3 Ark. App. 240, 625 S.W.2d 540 (1981), the defense argued the judgment did not show a specific finding by the jury that the defendant was armed with a deadly weapon during the offense. The court of appeals held the judgment could be used for enhancement purposes because it refers to the indictment charging the defendant with aggravated robbery by using and exhibiting a deadly weapon, and the jury verdict found the defendant guilty as charged in the indictment. We agree and apply the same rationale in this case as the documents in each exhibit encompass the information that specifies aggravated robbery with a deadly weapon.

The state’s evidence is sufficient to prove Allen had three prior convictions for aggravated robbery with a deadly weapon. Elmore v. State, supra. In addition, Allen testified that he had been convicted of aggravated robbery previously and he had entered three guilty pleas. Since the conviction in this case was also for aggravated robbery with a deadly weapon, the jury properly found Allen had four convictions for aggravated robbery with a deadly weapon, and correctly enhanced his sentence under Ark. Stat. Ann. § 41-2102(3)(d).

III. JAIL TIME SERVED

Allen contends that his sentence should be credited with approximately two years for the time he served in out of state jails, as well as the four months credit he received while jailed in Arkansas. Ark. Stat. Ann. § 41-904 (Repl. 1977) provides: “If a defendant is held in custody for conduct that results in a sentence to imprisonment, the court shall credit the time spent in custody against the sentence.” We have always strictly construed this statute. The statute provides for jail time credit against a sentence where the pretrial incarceration was imposed due to the conduct that resulted in a conviction and sentence. We only allow credit for jail time served in Arkansas on this charge. Hughes v. State, 281 Ark. 428, 664 S.W.2d 471 (1984); Cannon v. State, 265 Ark. 270, 578 S.W.2d 20 (1979). In Boone v. State, 270 Ark. 83, 85, 603 S.W.2d 410 (1980), we stated:

Our statute requires that a defendant held in custody for conduct that results in a sentence to imprisonment be given credit for the time spent in custody against his sentence. Ark. Stat. Ann. § 41-904 (Repl. 1977). Jail time credit is, therefore, appropriate when a defendant’s pretrial incarceration is due to his inability to make bail, but is inappropriate for time served in connection with wholly unrelated charges based on conduct other than for which the defendant is ultimately sentenced.

The time Allen was held in jail in Texas and in Tennessee prior to his waiving extradition from Tennessee to Arkansas cannot be credited against his sentence for he is not entitled to credit for jail time served as a fugitive while awaiting his return to Arkansas. Hughes v. State, 260 Ark. 399-A, 540 S.W.2d 592(1976). Furthermore, we have refused to grant credit for jail time served on another charge. McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986); Hughes v. State, supra. The trial court credited Allen with all the jail time served to which he was entitled.

IV. MISTRIAL

Allen’s final claim is that the trial court erred in failing to grant a mistrial when Detective A. J. Gary testified that registration of the motorcycle used in the robbery had been traced to Allen.

Earlier in his testimony, Gary alluded to the fact that he had traced the motorcycle back to Allen, and had obtained a description of Allen as a result. Allen does not take exception to this testimony, rather he complains that mistrial was warranted as a result of Gary later testifying that the motorcycle was registered to Allen. The basis of his argument for mistrial was stated in the following particulars:

“I have received no discovery whatsoever on the true registration of this motorcycle. I have been told that they may check it out, but I have received nothing ever since. All I knew was that this motorcycle was at one point checked out and it came back as no owner and this is a material fact in this case and I am proclaiming surprise.”

In making his proclamation, counsel did not ask for a continuance, or for the court to order inspection of the title (which was not offered in evidence) under the authority of Ark. R. Crim. P. 19.17, nor did he ask the trial court to admonish the jury to disregard Gary’s testimony concerning actual title. He merely claimed surprise and asked for mistrial.

Although the state apparently located title registration papers immediately prior to trial and failed to so advise the appellant, it should come as no surprise to him since there is testimony throughout the record that Gary had traced both the motorcycle and helmet back to Allen. Mistrial is an extreme remedy which should only be granted where there has been error so prejudicial that justice cannot be served by continuation of the trial. See Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). A decision to grant mistrial rests within the sound discretion of the trial court. Hogan v. State, 281 Ark. 250, 633 S.W.2d 726 (1984). We find that the trial court did not abuse its discretion in refusing to grant a mistrial.

Affirmed.


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    James BRYAN v. EMPLOYERS NATIONAL INSURANCE CORPORATION, et al.
    87-255
    742 S.W.2d 557
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988
    [Rehearing denied February 22, 1988.]

      Hankins, Capps, Hicks & Madden, by: Stuart W. Hankins, Sherry S. Means, for appellant.

      Matthews & Sanders, for appellee.

      Purtle, J., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

This case involves the interpretation of the exclusionary language of an insurance policy. The appellant, James Bryan, and Jack Hill entered into an oral partnership agreement in 1982 for the purpose of operating the Townhouse Motel and Restaurant in Conway, Arkansas, and the King’s Inn Best Western in Russellville, Arkansas. In 1985 Hill procured insurance from the appellee, Employers National Insurance Corporation (“Employers National”), to cover both the Townhouse Motel and King’s Inn Best Western. The named insured under the policy was Jack Hill d/b/a Townhouse Motel and King’s Inn Best Western. One day after the procurement of the policy the Townhouse Motel was damaged by fire. Subsequently, Hill was convicted of arson of the insured premises. Bryan was not involved in the crime.

In 1987 Bryan filed a third-party complaint and petition for declaratory judgment alleging that he was entitled to a portion of the proceeds of the policy. Employers National responded by filing a motion for summary judgment. In granting summary judgment, the trial court found that Bryan was not entitled to the insurance policy proceeds for three reasons: (1) he was not an insured under the policy, (2) Jack Hill committed arson of the insured property and, therefore, Bryan could not recover as an innocent co-partner as a matter of Arkansas law, and (3) the language of the policy specifically barred recovery. Bryan contends that the. trial court erred in its findings. We find that the exclusionary provisions of the policy prohibit his recovery. Accordingly, we do not address the other issues on appeal.

The Employers National insurance policy issued to Jack Hill provides in pertinent part as follows:

VI. Exclusions.
A. This policy does not insure under this form against loss caused by:
10. Any fraudulent, dishonest, or criminal act done by or at the instigation of any insured, partner or joint adventurer in or of any insured. . . .

The explicit language of the policy precludes recovery if any insured commits a criminal act. Since Jack Hill, a named insured, was found guilty of arson, Bryan cannot recover. The trial court properly rendered summary judgment as there was no genuine issue of material fact for trial. Terry v. Taylor, 293 Ark. 237, 737 S.W.2d 437 (1987).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The language in the insurance policy relied upon by the majority does not “preclude recovery if any insured commits a criminal act.” The language is designed to prevent any insured from collecting for a loss resulting by his “fraudulent, dishonest, or criminal act” or for loss resulting from such acts done “at the instigation” of such insured. This language was not intended to give the insurance company an excuse from paying a loss to an innocent insured even though another insured intentionally caused the loss.

The majority has adopted the “guilt by association” doctrine which certainly is not consistent with our prior decisions or public policy. For instance, under the majority’s decision a couple owning an insured dwelling could divorce and one spouse could intentionally burn down the dwelling for spite and thereby deny the innocent spouse the right of recovery. Or, a co-tenant with criminal intent could burn property co-owned by an innocent party in order to abandon him without any hope of recovery.

In the case of Mechanic’s Insurance Company v. Inter-Southern Life Insurance Company, 184 Ark. 625, 43 S.W.2d 81 (1931), we decided that the criminal act of a co-owner did not defeat the claim of an innocent owner. In Mechanics the landlord and the tenant had entered into an oral agreement whereby the tenant would farm rice on land owned by the landlord. The threshed rice was stored in a building which was destroyed by fire. After the tenant signed a proof of loss, he was indicted for arson and the fire insurance company refused to pay the loss. The landlord filed suit alleging that he did not know the origin of the fire and that the fire did not occur by any violations on his part of the provisions of the policy. The insuror denied liability claiming that it did not have notice of the landlord and tenant relationship and further that the tenant moved the rice from the building, burned the building, and then falsely swore to the proof of loss. The insurance company argued that the landlord and tenant were partners and that the tenant’s act of arson barred the landlord’s recovery under the policy. The thrust of the holding in Mechanics was that criminal conduct by a co-owner will not defeat the claim of an innocent co-owner.

We have also previously held that a former spouse who purchases fire insurance in his or her own name cannot deprive the other spouse of a pro rata recovery paid by an insurance company. In Brown v. Brown, 263 Ark. 189, 563 S.W.2d 444 (1978), we upheld the trial court’s finding that a fire insurance policy obtained by the husband which did not name the wife as an insured, inured to the benefit of the wife. We specifically reaffirmed that decision in Caffey v. Caffey, 274 Ark. 335, 625 S.W.2d 444 (1981), where the divorced wife purchased and paid for an insurance policy without naming her former husband, a tenant in common. We held that the policy inured to the benefit of both parties. The rationale for both Brown and Caffey was that tenants in common or joint tenants have a fiduciary relationship with each other. See also Hendricks v. Hendricks, 256 Ark. 289, 506 S.W.2d 848 (1974).

The trial court granted summary judgment upon the pleadings and agreement of counsel. It is my opinion that there were genuine issues of fact to be determined. Therefore, summary judgment was improper.

In any event the majority clearly misinterprets the exclusionary language in the policy. I would reverse and remand for further proceedings.


text:
    Sandra CONKLE v. Charles W. WALKER
    87-242
    742 S.W.2d 892
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      Vaughan and Bamburg, by: Keith Vaughan, for appellant.

      Rice, Batton, Pierce & Swift, P.A., by: Mackie M. Pierce, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal is from an order establishing a lost will and admitting it into probate. Guy William Walker was a member of the United States Army, stationed at Fort Campbell, Kentucky. In the spring of 1985, his company was deployed to the Sinai Peninsula. Prior to his departure, a will was prepared for Walker by an army legal officer. After his death the will could not be located, and a dispute arose over its execution as well as its existence. The probate court found the evidence sufficient to enter an order establishing the lost will and admitted it into probate. We disagree with this finding and reverse.

Upon Walker’s return from the Sinai, he was killed along with 200 other members of his unit in an airplane crash near Gander, Newfoundland, on December 12,1985. Thereafter, the appellee, Charles W. Walker, petitioned to admit his son’s will to probate. The proffered will was an unsigned copy of a will that was prepared for Walker by Captain Church of the Judge Advocate General’s Corps. The will left Walker’s entire estate to his father and step-mother. The appellant, Sandra Conkle, Walker’s natural mother, objected to the probate of the lost will.

The probate judge admitted the will into probate and appointed appellee as executor. The order stated:

That the instrument offered for Probate is a copy of the Last Will and Testatment of the deceased, Guy William Walker. That the Court found that from the testimony of Captain Russell A. Church, Judge Advocate General’s Corps, U.S. Army, Charles Kelly, and Kenneth Kimmel, that the copy of said Will offered for Probate was executed in all respects according to law when the Testator was competent to do so and acting without undue influence, fraud, or restraint; that the Will was not revoked, and the instrument offered for Probate is his Last Will and Testament which was in existence at the time of the death of the Testator.

Conkle raises two arguments on appeal: (1) the probate court was wrong in finding the copy of Walker’s will was properly executed; and (2) the probate judge erred in finding the presumption of revocation was rebutted. Probate cases are tried de novo on appeal, and the decision of the probate judge will not be reversed unless it is clearly against the preponderance of the evidence. Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963); Ross v. Edwards, 231 Ark. 902, 333 S.W.2d 487 (1960).

Generally speaking, lost or destroyed wills are established by an action in chancery. Ark. Stat. Ann. § 60-301 (Repl. 1971). However, Ark. Stat. Ann. § 62-2004(b) (Repl. 1971) grants the probate court additional jurisdiction in matters of “heirship, adoption, and (concurrent with jurisdiction of other courts) jurisdiction to restore lost wills and for the construction of wills when incident to the administration of an estate. . . .” (Emphasis added.) See Cross v. McLaren, 223 Ark. 674, 267 S.W.2d 956 (1954).

The proceedings here were to restore a lost will incident to the administration of Walker’s estate; therefore, jurisdiction is proper in probate court.

In order to establish a lost will, the probate court must follow the dictates of Ark. Stat. Ann. § 60-304 (Repl. 1971) which provides:

No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two [2] witnesses, a correct copy or draft being deemed equivalent to one [1] witness.

The proponent of a lost will has the burden of proving the execution of a will and its contents. Porter v. Sheffield, 212 Ark. 1015, 208 S.W.2d 999 (1948). One seeking to establish a lost will must prove its execution and contents by strong, cogent and convincing evidence, though he is not required to produce evidence sufficient to remove all reasonable doubt. Hanna v. Magee, 189 Ark. 330, 72 S.W.2d 237 (1934). On no subject, perhaps, are statutes so strict in requiring a writing executed and attested in certain forms as in the case of wills, and, “while it is firmly established that a lost will may be proved by secondary evidence, the courts have always required such evidence to be direct, clear and convincing.” Id. at 337, quoting from Clark v. Turner, 38 L.R.A. 433; 14 Enc. of Evidence 465; see also Harrell v. Harrell, 207 Ark. 905, 909, 183 S.W.2d 293 (1944). We think the facts introduced into evidence are not sufficient to overcome the standard of proof necessary to prove Walker’s lost will was executed.

Captain Church testified that in April and May of 1985, before the members of Alpha Company were deployed to the Sinai, he helped them put their legal affairs in order, which included preparing wills. Walker completed a will questionnaire providing the necessary information. Captain Church recalled working with Walker’s will because something was missing from his worksheet and it was necessary to track him down through his first sergeant to obtain the information needed for the will. Although he prepared about 260 wills during that period of time, Captain Church specifically remembered Walker’s will form because he was from Pulaski County. The wills were prepared from the will worksheet by a secretary in his office on a word processor. After the wills were prepared, they were folded and placed in a “shotgun” envelope and sent to the first sergeant of Alpha Company who distributed them to the soldiers.

After the soldiers had time to review their wills, a time and place was set for execution. Captain Church went to the Alpha Company orderly room where fourteen wills were executed. He took seven of fourteen soldiers at a time and lined them up at a long counter with their wills in front of them. The Captain asked them a series of questions to determine their competency and then went down the line showing each soldier where to sign his will and at the same time, he had three people sign as witnesses. After all of the signatures were in place, he looked over the documents to insure the signatures were properly placed and the date was correct. He then signed the wills as notary, sealed the documents, and handed them back to the soldiers with instructions as to where to keep the wills.

Captain Church recalled going to Alpha Company and executing fourteen wills because he wrote the date and number down on his pocket calendar. Otherwise, he testified that there was not anything peculiar about his meeting with Alpha Company that caused him to remember it. Captain Church’s testimony up to this point concerned the standard operating procedures he utilized in the execution of wills with the various troops stationed at Fort Campbell.

In response to a question as to whether or not Walker was one of the individuals that executed his will that day, he replied, “I think he was. I can’t say one hundred percent that he was but I think he was.” Unfortunately, neither Captain Church nor his staff kept executed copies of the wills nor did they maintain a list of the various witnesses who purportedly signed the various wills that were produced by his office. Captain Church’s testimony, for the most part, can be summed up by his statement when asked if he saw Walker sign the will, “I cannot be certain that he did.”

Kenneth Kimmell testified he was stationed at Fort Campbell with Walker. He recalled a conversation he had with Walker in which Walker stated he wanted to make a will. In fact, he talked about making a will for four months. Walker later announced to Kimmell, “I got my will made up.”

Charles James Kelley told the probate court that he rode to Jacksonville from Fort Campbell on the Fourth of July weekend with Walker. During that trip, Walker told him that in his will he was leaving all of his property to his father and Terry, his stepmother.

Charles Walker was the last witness to testify. He stated that after his son’s death, he went through his son’s personal belongings and papers at the house but did not locate a will. The only personal effects that survived the plane crash were his dog tags and class ring.

Unless it can be said that the evidence was sufficiently strong, cogent and convincing, or that the proof is satisfactory and most conclusive that the will was duly executed, there can be no establishment of a lost will. Porter v. Sheffield, supra. Under the circumstantial evidence before us, we cannot say the will was duly executed, and we reverse on this ground. Therefore, we do not consider Conkle’s argument that the probate judge erred in finding the presumption of revocation was rebutted.

Reversed.

Purtle, J., not participating.


text:
    Johnny SCHERRER v. STATE of Arkansas
    CR 87-71
    742 S.W.2d 877
    Supreme Court of Arkansas
    Opinion delivered January 19, 1988

      James P. Clouette, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This case was tried and appealed separately from the case of Jimmy Scherrer v. State of Arkansas, 294 Ark. 287, 742 S.W.2d 884 (1988), also decided today. Johnny Scherrer was found guilty of murder in the first degree. Because the jury could not agree upon a sentence, the trial judge sentenced him to life imprisonment pursuant to Ark. Stat. Ann. §§ 41-802 and 43-2306 (Repl. 1977). He argues ten points for reversal. We find no error and affirm the judgment of the trial court.

Debbie Watts was murdered in 1985. Terry Harrison, Scherrer-’s accomplice, and Billy Ivey, who witnessed the murder, offered the principal testimony at trial. Harrison testified that Scherrer, utilizing the name Jim Woods, called the victim’s place of employment two days before the murder asking to speak with her. He also testified that Scherrer called the victim on the day of the murder and told her to meet him out near Dunklin’s farm, which was near the crime scene. Ivey’s and Harrison’s testimony essentially established that Scherrer raped her, cut her throat, and then put her body in a nearby canal. Other witnesses placed Scherrer’s automobile in the vicinity of the crime scene on the day of the murder.

I. MOTION FOR DIRECTED VERDICT

Scherrer first argues that the trial court erred in refusing to grant his motion for a directed verdict since the state failed to corroborate the accomplice testimony of Ivey and Harrison. Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides in pertinent part:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.

We have held that the failure of the state to corroborate its accomplice testimony warrants reversal and dismissal since it is essentially a failure by the state to prove its case. See our supplemental opinion on denial of rehearing in Foster v. State, 290 Ark. 495, 722 S.W.2d 869, cert. denied,_U.S__, 107 S.Ct. 3213 (1987).

Ark. Stat. Ann. § 41-303(1) (Repl. 1977) defines accomplice:

A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(a) solicits, advises, encourages or coerces the other person to commit it; or
(b) aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(c) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, or failure to inform officers of the law is not sufficient to make one an accomplice. Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983). The defendant has the burden of proving that a witness is an accomplice whose testimony must be corroborated. Lear v. State, 278 Ark. 70, 643 S.W.2d 550 (1982).

The evidence clearly reflects that Harrison was an accomplice and that Ivey was not. Ivey testified that although he was present at the crime scene, he did not participate in the commission of the crime. Terry Harrison corroborated this testimony. Other evidence introduced at trial establishes that Ivey simply witnessed the crime and then failed to inform the police. The jury was instructed pursuant to §§ 43-2116 and 41-303(1) and evidently concluded that Ivey was not an accomplice. The finding of a jury that a witness is not an accomplice is binding unless the evidence conclusively shows otherwise. Spears, supra. The evidence presented at trial does not show conclusively that Ivey was an accomplice.

When there is no evidence from which a jury could find a defendant guilty without resorting to speculation and conjecture, a trial judge should grant a directed verdict. Fortner v. State, 258 Ark. 591, 528 S.W.2d 378 (1975). Ivey testified that he saw Scherrer cut the victim’s throat, place her on a piece of plastic, and rape her. Since Harrison’s and Ivey’s testimony coupled with other circumstantial evidence are sufficient evidence of Scherrer’s guilt, the trial court was correct in refusing to render a directed verdict.

II. DISQUALIFICATION OF THE PROSECUTING ATTORNEY

Scherrer contends that the trial court prejudicially erred in denying his motion to disqualify the prosecutor, Sam Pope. He relies on our holding in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), to the effect that when a prosecutor takes such an active role in the investigation of a crime that he potentially becomes a material witness for either the state or the defense, it is reversible error to allow him to serve as an advocate for the state in the case. In Duncan, the prosecutor engaged in extensive interrogation of the defendant. He testified not only at a suppression hearing in support of interrogation procedures but also, in argument to the jury, he described the events during the defendant’s confinement and expressed his opinion regarding a crucial element of the case. We held that in so doing, the prosecutor committed reversible error since he effectively became a witness for the state and underwrote his own credibility.

Unlike in Duncan, the prosecutor did not interrogate Scherrer but merely took a statement from Ivey, a potential witness (after promising him limited immunity), which implicated Scherrer. The defense later called Pope to testify concerning this statement and the offer of immunity. Pope’s actions were part of a prosecutor’s routine preparation for trial. He did not take such an active role that he potentially became a material witness in the case. The trial court did not err in denying the motion to disqualify.

III. FAILURE TO STRIKE VENIREMEN

Scherrer argues that because he had to use three of his peremptory challenges to strike jurors who should have been excluded for cause, he was forced to allow an objectionable juror to be seated. In order to preserve this point for appeal, an appellant must have exhausted his peremptory challenges and must show that he was later forced to accept a juror who should have been excused for cause. Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986); Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982).

The sixth amendment to the Constitution of the United States guarantees a criminal defendant the right to unbiased and unprejudiced jurors. See Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980). The burden is on the party challenging the juror to prove actual bias. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). When a juror states that he can lay aside preconceived opinions and give the accused the benefit of all doubts to which he is entitled by law, he qualifies as impartial under constitutional requirements. Glover v. State, 248 Ark. 1260, 455 S.W.2d 670 (1970). A defendant is not entitled to a trial before jurors completely ignorant of the alleged crime. Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985), rev’d on other grounds, Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987).

After Scherrer exhausted his peremptory challenges, the trial court seated juror Rathey as the twelfth and final juror. At this point, Scherrer objected by stating that he would strike Rathey if he had a peremptory challenge. From the voir dire testimony, there is no evidence that Rathey was biased. In fact, he indicated that he understood the presumption of innocence and would follow the law as explained by the court. Although Rathey stated that he had heard about the case on television, this in itself is not sufficient cause for removal. Id. There is no merit in Scherrer’s contention that an objectionable juror was forced upon him.

IV. VOLUNTARINESS OF CUSTODIAL STATEMENTS

Scherrer contends that the trial court erred in admitting custodial statements coerced from him and Jimmy Scherrer in violation of their fourteenth and fifth amendment right not to incriminate themselves.

Johnny Scherrer does not have standing to assert that Jimmy Scherrer’s right not to incriminate himself was violated since this right is personal. United States v. Nobles, 422 U.S. 225 (1975); Shinsky v. State, 250 Ark. 620, 466 S.W.2d 911 (1971). In addition, since no custodial statements made by Jimmy Scherrer were introduced into evidence against Johnny Scherrer, Johnny Scherrer was not prejudiced in any way. See Blake v. State, 244 Ark. 37, 423 S.W.2d 544 (1968).

The issue that we must decide is whether Johnny Scherrer’s custodial statements were involuntary. Such statements are presumed to be involuntary. Fleming, supra. On appeal the burden is on the state to show that the confession was made voluntarily, freely, and understandingly, without hope of reward or fear of punishment. Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).

In determining whether a custodial statement is voluntary, we make an independent review of the totality of the circumstances and will reverse only if the trial court’s findings are clearly against the preponderance of the evidence. Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). Pursuant to the “totality of the circumstances” approach, we examine two basic components: the statements of the officer and the vulnerability of the accused. Fleming, supra. Some of the factors we consider in determining whether a statement was voluntarily made include the youth or age of the accused, lack of education, low intelligence, lack of advice as to constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Jackson, supra.

On September 28,1985, Scherrer was arrested and taken to the Dumas Police Department. After officers read him his Miranda rights, he was questioned about the murder. When Scherrer did not respond to officer Ed Gilbert’s questions, Gilbert, who was approximately six feet from Scherrer, became so angry that he slammed his hand down on a glass desk top, breaking the glass. He then asked Scherrer how he would like it if his throat were cut. The officers who witnessed the episode noticed no change in Scherrer’s demeanor. After this, Gilbert did not question Scherrer further, or at least did not question him for more than a few minutes, and then left the room.

Shortly thereafter, Chief Ronnie Ferguson initiated a conversation with Scherrer. Approximately fifteen minutes after Ferguson began talking with Scherrer, Ferguson told him that the reason Scherrer could not remember what he had done the day of the murder was that he was there when the girl was killed. In response, Scherrer remarked that his car may have been there but he was not.

In examining the totality of the circumstances, we find it significant that fifteen minutes elapsed between Scherrer’s confrontation with Gilbert and the statement to Ferguson, that Gilbert was not present when Scherrer made the statement, and that Ferguson did not engage in coercion or intimidation during the interrogation. In addition, no physical punishment was inflicted on Scherrer, and he was advised of his constitutional rights prior to the thirty-minute questioning. For these reasons, we conclude that his statement to Ferguson was voluntarily and freely given.

V. IRRELEVANT AND PREJUDICIAL TESTIMONY

Scherrer argues that the trial court erred in allowing irrelevant and prejudicial testimony by state’s witness Terry Harrison that Johnny Scherrer, Jimmy Scherrer, and he would pass their time by watching horror and sex movies obtained from the local video rental store. Relevant evidence is defined by Ark. R. Evid. 401:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

The fact that Scherrer passed the time watching sex and horror movies is irrelevant. The trial court should not have allowed the testimony. However, we cannot say this error warrants reversal as the prejudicial effect was minimal and the evidence of guilt so overwhelming. Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1986).

VI. HEARSAY TESTIMONY

Scherrer argues that Glenda Bryant’s testimony regarding two phone calls should have been excluded as hearsay. Bryant, a secretary at the victim’s place of employment, testified at trial that while at work on Monday, September 16, 1985, two days before the murder, she received a phone call from someone who said that he was a friend of a man named Jim Woods. The caller asked for Ms. Watts and when told that she could not come to the phone, he said that he wanted Ms. Watts to speak with his friend, Jim Woods, about going back to school. The caller left directions to a local trailer park. Bryant also received a telephone call on Tuesday, September 17,1985, from a man who said he was Jim Woods. The caller said that he wanted Ms. Watts to come talk to his mother about going to school.

Bryant’s testimony was admissible as an exception to the hearsay rule contained in Ark. R. Evid. 803(3), as showing the declarant’s [caller’s] intent on the day of the murder. In State v. Abernathy, 265 Ark. 218, 577 S.W.2d 591 (1979), we held a statement by a witness that a murder victim had said she was going to meet the defendant on the night she was murdered was admissible under Rule 803(3), as showing the declarant’s [victim’s] intent on the night of the murder. See also Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987). Since the testimony was admissible, we affirm the decision of the trial court.

VII. DISCOVERY STATEMENTS

Scherrer contends that the trial court erred by allowing Mary Waltman to testify concerning a statement made to her by Terry Harrison subsequent to the time Ms. Watts became missing since the prosecutor failed to provide this statement pursuant to a discovery request. Waltman testified:

On Friday Terry didn’t get out of the car. He acted okay on Thursday. I asked Terry to go around the trailer. That was on Thursday. He had told me he had to tell me something. He looked up at Johnny.

We will not reverse for errors that do not affect the essential fairness of a trial. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985). A litigant is entitled to a fair trial, not a perfect one. Id. Even assuming the trial judge erred in allowing Waltman’s testimony, Scherrer has failed to show the prejudicial effect of Waltman’s statement that Terry had to tell her something. We affirm on this point.

VIII. PRIOR ARREST

Scherrer asserts that the trial court erred by not granting his motion for mistrial. He moved for a mistrial after state’s witness Lewis Ash made reference to Scherrer’s being “arrested for the first time” and to “the first time that Johnny got locked up.” Ash made the statements while describing, on direct examination, his move out of a trailer he shared with Scherrer and the time frame in which he owned the automobile that he later sold to Scherrer. In each instance, the trial court admonished the jury to disregard the statements.

A decision to grant a mistrial rests within the sound discretion of the trial court. Free, supra. A mistrial is an exceptional remedy that should be used only when error is so prejudicial that it cannot be cured by an admonition to the jury. Id.; see also Bennett v. State, 284 Ark. 87, 679 S.W.2d 202 (1984).

In Bennett we held that a witness’s reference to the defendant’s prior bookings was cured by the trial court’s admonishment to the jury. Likewise, the trial court’s admonition in the instant case was sufficient to cure any possible prejudice to Scherrer. The court correctly refused to grant the motion for mistrial.

IX. DISCUSSION OF WITNESSES DURING RECESS

Scherrer argues that the trial court erred in failing to declare a mistrial after a police officer and state’s witness Ash discussed during recess Ash’s testimony concerning the location of a knife allegedly used in the murder. Before taking a recess, the court instructed the litigants not to discuss Ash’s testimony with him. After Ash stated on cross-examination that he had talked to an officer during recess, the defense moved for a mistrial. After hearing testimony concerning the content of the conversation, the trial court denied the motion.

As stated above, we will not reverse the trial court’s refusal to declare a mistrial in the absence of an abuse of discretion. Free, supra. Although Ash testified after recess as to the location of the knife, his testimony was not affected by the conversation and did not prejudice Scherrer. In fact, he stated, “It’s not true that he [Johnny Scherrer] gave me this knife to hide.” We find that the trial court did not abuse its discretion.

X. SENTENCING

Finally, Scherrer contends that the trial court erred in sentencing him to life imprisonment, and he should be allowed a rehearing on the sentencing phase of the trial or, in the alternative, a new trial. Sentencing is strictly controlled by statute. Deaton v. State, 283 Ark. 79, 671 S.W.2d 175 (1984). There is no constitutional right to be sentenced by a jury. Spaziano v. Florida, 468 U.S. 447 (1984); Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960).

During deliberation on the appropriate sentence for Scherrer, the jury asked the judge to define ten to forty and to define life. The judge answered, “You can sentence him to a range of not less than ten years nor more than forty years or you can sentence him to life imprisonment.” Subsequently, the jury asked, “Are we to pick a number in the ten to forty range or do we just say ten to forty?” The judge replied, “You are to pick a number in the ten to forty range or life.” It is not clear why the jury asked, “Are we to pick a number in the ten to forty range or do we just say ten to forty?” Scherrer argues that this language indicates the jury wanted to sentence him from ten to forty. Although this may have been the case, it is equally plausible that the jury did not understand the ten to forty instruction and merely wanted clarification before deliberating on ten to forty or life.

The jury later returned unable to reach a verdict. The judge sentenced Scherrer to life imprisonment pursuant to Ark. Stat. Ann. §§ 41-802 and 43-2306 (Repl. 1977), which provide that the court shall sentence a defendant if the jury fails to agree on a punishment. Therefore, the trial court’s action was proper.

Pursuant to Ark. Sup. Ct. R. 11(f), we have made our own examination of all other objections made at trial and find no reversible error.

Affirmed.