text:
    Dan W. FORTNER & Sharon Lee HOLCOMBE v. STATE of Arkansas
    CR 75-98
    528 S.W. 2d 378
    Opinion delivered October 6, 1975

      John M. Fincher, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Terry Kirkpatrick, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellants Dan W. Fortner and Sharon Lee Holcombe were convicted at a jury trial in the Pulaski County Circuit Court on information filed by the prosecuting attorney charging them with selling an obscene motion picture film in violation of Ark. Stat. Ann. § 41-2729 (Supp. 1973). The appellant Fortner was fined $2,000 and sentenced to three years in the penitentiary, and the appellant Holcombe was fined $2,000. The appellants rely on the following points for reversal:

“The court erred in refusing to grant defendants’ supplemental motion to dismiss.
The court erred in refusing to grant defendants ’ motion to dismiss.
The trial court erred in denying defendant Holcombe’s motion for directed verdict at the conclusion of the state’s case.
The closing argument of the attorney for the state was improper and so prejudiced defendant Holcombe that the conviction must be reversed.
The trial court erred in refusing to give certain jury instructions requested by defendants and in giving certain jury instructions over the objection of defendants.”

Ark. Stat. Ann. § 41-2729 (Supp. 1973) provides as follows:

“Hereafter it shall be unlawful for any person knowingly to exhibit, sell, offer to sell, give away, circulate, produce, distribute, attempt to distribute, or have in his or her possession any obscene film.”

Section 41-2729, supra, makes the enumerated acts unlawful but Ark. Stat. Ann. § 41-2731 (Supp. 1973) makes the selling of obscene films a felony and mere possession a misdemeanor. The appellants argue that the statute is unconstitutionally overbroad because it makes mere possession of an obscene film a criminal act. This same argument was thoroughly rejected in our recent decision in the case of Smith v. State, 258 Ark. 549, 528 S.W. 2d 360 (1975), and we find no merit to that contention here. For a more thorough discussion on this point see Levy v. Albright, 204 Ark. 657, 163 S.W. 2d 529 (1942), cited in Smith, supra.

In support of their assignment that the trial court erred in refusing to grant their motion to dismiss, the appellants recite three reasons, separately designated as “A,” “B” and “C.” They contend under “A” that § 41-2729, supra, as judicially construed, is vague and indefinite and thus violative of due process in that it does not provide fair notice of what is prohibited. They argue under “B” that wholly aside from the difficulties in determining what standards obtain in Arkansas, the “new Miller” test is exquisitely vague and lacking in the precision necessary in legislation touching upon First Amendment rights; and, they argue under “C” that the information charged only that the defendants, on a particular date, at a certain business location, did sell an obscene motion picture film, and that the information is constitutionally insufficient. The arguments under reasons “A” and “B” were advanced and rejected in Smith v. State, supra, and we find no merit in the appellants’ contention under “C.”

Ark. Stat. Ann. § 43-1006 (Repl. 1964) reads as follows:

“The language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the name of the parties. It shall not be necessary to include statements of the act or acts constituting the offense, unless the offense cannot be charged without doing so. Nor shall it be necessary to allege that the act or acts constituting the offense were done wilfully, unlawfully, feloniously, maliciously, deliberately or with premeditation, but the name of the offense charged in the indictment shall carry with it all such allegations. The State, upon request of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for conviction.”

The appellants do not deny that the information satisfies the statutory requirements but they contend that the information does not set forth facts which would enable the appellants to plead an acquittal or conviction in bar of future prosecution for the same offense. The appellants cite two cases, Hagner v. United States, 285 U.S. 427 (1932), and United States v. Debrow, 346 U.S. 374 (1953), in support of this argument. In both cases the United States Supreme Court upheld the validity of criminal indictments because they gave the defendants sufficient notice of their alleged crimes. Indeed, the test set forth in Hagner and quoted in Debrow indicates that it is the court record and not the indictment alone which forms the basis for a plea of former jeopardy. In these cases the court said:

“The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and ‘sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.’ Cochran v. United States, 157 U.S. 286; Rosen v. United States, 161 U.S. 29.”

We find no merit in the appellants’ second assignment.

We must agree that the trial court erred in denying defendant Holcombe’s motion for directed verdict at the conclusion of the state’s case. It is true that a verdict should be directed only when there is no factual issue to go to the jury. Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822 (1972). But as we view the record in the case at bar, there was no evidence from which the jury could have found, without resorting to surmise and conjecture, that the appellant Holcombe had knowledge that the film sold was an obscene film, as required for conviction under § 41-2729, supra. The appellant Holcombe correctly asserts that there was no direct evidence that she was even present during the conversation in which the appellant Fortner described the film to the investigating officer. There was testimony that she was the person who put the money from the sale into the cash register, and there was also testimony that the cash register was located on a counter which was in front of the film racks from which the obscene film was selected. The evidence indicates that Holcombe was employed as a clerk in the place, and it is easy to surmise that she knew what was going on and what was being sold from the film rack where she worked as cashier. Juries, however, are not permitted to indulge in surmise and conjecture in arriving at a guilty verdict in the trial of one accused of crime. A jury verdict of guilty must be based on competent evidence and there is no evidence in the record that Holcombe knew anything about the content of the film or how it compared with the “peep shows” in the back part of the place. Having concluded that the judgment must be reversed as to Holcombe, we do not reach the appellants’ fourth assignment since the argument complained of is not likely to occur at a new trial.

The appellants contend that the trial court erred in giving certain jury instructions requested by the state and in refusing certain instructions requested by the defendants. With the exception of the instruction on scienter contained in the state’s instruction No. 1 given by the court in the case at bar, the alleged errors pertaining to the instructions also arose in Smith v. State, supra, and were decided adversely to the appellants’ contention. The portion of the instruction objected to reads as follows:

“As used herein, ‘Knowingly’ means having general knowledge of, or reason to know, or a belief which warrants further inspection or inquiry of the character and content of a film which is reasonably susceptible of examination by the defendant.”

The felony statute under which the appellants were charged was Act 411 of 1967, Ark. Stat. Ann. §§ 41-2729 — 41-2731 (Supp. 1973). This Act did not define scienter. The above portion of the instruction vigorously objected to, was apparently lifted from Act 133 of 1969 entitled “AN ACT Prohibiting the Sale or Loan of Pornographic Literature to Minors ...,”a misdemeanor statute digested as Ark. Stat. Ann. §§ 41-2732 — 41-2734 (Supp. 1973), where scienter is defined under § 41-2732 (g) as follows:

“ ‘Knowingly’ means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of [sic] both.”

We are of the opinion that the trial court went further than he should have gone in adding to the state’s instruction No. 1 the phrase: “or a belief which warrants further inspection or inquiry of the character and content of a film which is reasonably susceptible of examination by the defendant.” We do not pass upon the use of this language as part of an instruction in a case arising under §§ 41-2732 — 41-2734, supra, because that is not the situation in the case before us. Here the appellants were charged under the felony statute, § 41-2729, and we are of the opinion that to sustain a conviction thereunder, scienter requires more than a mere belief which warrants further inspection or inquiry. The appellants’ own requested instructions No. 1 and No. 16, which were given by the trial court, if not in conflict with the state’s instruction No. 1, certainly added no clarification to all the instructions. The appellants’ instruction No. 1 was given as follows:

“Three essential elements must be proved in order to establish the offense charged in the Information as violation of Arkansas Statutes 41-2729:
FIRST: That the motion picture charged in the Information is obscene, as I shall shortly explain the meaning of that term to you.
SECOND: That the Defendant exhibited, sold or offered to sell the motion picture charged as obscene in the Information.
THIRD: That the Defendant had knowledge of or reasonably should have known the nature, character, and content of the motion picture.
The burden is upon the Prosecution to prove beyond a reasonable doubt each of the essential elements of the crime; the law never imposes a duty upon any defendant in a criminal case the burden of calling any witnesses or producing any evidence.”

The appellants’ requested instruction No. 16 was given as follows:

“The mere fact alone that a defendant knew the contents of the motion picture film, if you should find such a fact, does not for that reason alone justify a conclusion that the said defendant knew that the character of the film herein was conceivably obscene in the Constitutional sense.”

The judgments as to both appellants are reversed and this case remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Cletes ESTES and Mitchell COLBURN v. STATE of Arkansas
    CR 75-99
    528 S.W. 2d 138
    Opinion delivered October 6, 1975

      Seay & Templeton, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Terry Kirkpatrick, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellants Cletes Estes and Mitchell Colburn were found guilty of having delivered a controlled substance, dl-Amphetamine, contrary to Ark. Stat. Ann. § 82-2617 (Supp. 1973). The jury fixed their sentences at 12 years in the Department of Correction, but upon a motion for new trial the sentences were reduced to ten years. Both appellants contend that the trial court erred in overruling their motion for new trial. In addition, appellant Estes contends that the verdict is against a preponderance of the evidence and that the trial court erred in permitting the State to refer to a sale of marijuana.

1. The trial court’s order overruling the motion for new trial and reducing the punishments from 12 to 10 years recites as follows:

“That during the course of the trial, and particularly during an in chambers discussion of the appropriate jury charge regarding the penalty to be assessed in the event of a finding of guilt of the Defendant by the jury, a conflict arose between the State and Counsel for the Defendant as to the penalty provided by Arkansas Statutes Annotated, Section 82-2617 for the sale of DL Amphetamines; that a representative of the Arkansas State Health Department was called to the chambers and specifically asked what classification had been placed on the sale of DL Amphetamines; the representative from the State Health Department stated that DL Amphetamines had been placed in a schedule which contained and provided a penalty of confinement of not less than five (5) years nor more than thirty (30) years, or a fine of not more than Twenty-Five Thousand Dollars ($25,000.00), or both; that the Court, the Prosecuting Attorney and the attorney for the Defendant accepted such statement made by the said State Health Officer and the Jury was so instructed. After deliberation, the jury returned a verdict finding the Defendant guilty of the offense charged and fixing his punishment at twelve (12) years in the Arkansas State Penitentiary. That subsequent to such verdict, the attorney for the Defendant determined and advised the Court that the jury had been mis-instructed as to the proper penalty provided by law, and duly filed his Motion for a new trial. Further, the Court finds that no timely objection was made by the attorney for the Defendant to the instruction as given by the Court and that pursuant to the provisions of Arkansas Statutes Annotated Section 43-2308 the Court is bound only to enter Judgment and pronounce sentence according to the highest limit prescribed by law for the particular offense; the Court further finds that the proper penalty for the offense for which the Defendant was being tried is confinement for a period of not less than three (3) years and not more than ten (10) years, or a fine of not more than Fifteen Thousand Dollars ($15,000.00), or both, and therefore the Court should reduce the penalty assessed against this Defendant by the jury from twelve (12) years to ten (10) years in the Arkansas State Penitentiary and the Motion filed herein should be denied. ”

The trial court was incorrect in holding Ark. Stat. Ann. § 43-2308 (Repl. 1964), applicable to the situation here involved. Here the error in the classification of the crime by the trial court applied to both the minimum and maximum penalties under the law, and since the jury arrived at neither the minimum nor the maximum as given bybhe trial court’s instructions, the only manner in which all prejudice to the appellant can be removed, beyond any doubt, is by reducing the penalty to the minimum prescribed by law. See McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 (1974). Should the Attorney General, within 17 days, elect to consent to a reduction of the sentence to the minimum of three years, the judgment will be affirmed as modified. Otherwise, the judgment must be reversed and the cause remanded for new trial.

The State, to sustain the action of the trial court in reducing the sentence to the highest allowed by law, suggests that, in the absence of an objection to the trial court’s instruction, the trial court did not commit error. However, the trial court’s order reflects that counsel made their position known and that, in effect, the trial court permitted the State’s expert witness, who professed to be an expert on the classification of drugs, to overrule the appellant’s objections. Consequently, the State’s position is not well taken.

2. Appellant Estes’ contention that the evidence is insufficient to convict him has no merit. The proof on the part of the undercover agent was that when Carl Taylor asked if Colburn and Estes had some “White-Cross,” Cletes Estes then said they had some and asked the undercover agent if he wanted some. Of course, that evidence together with the evidence that Estes and Colburn were together when the delivery was made was sufficient to sustain the conviction, if the jury believed such evidence.

3. The trial court did not err in admitting in evidence the fact that Estes told the undercover agent that he and Colburn would have some marijuana later in the week. Such evidence was permissible to show that Estes was dealing in drugs in general.

Affirmed as modified, if the Attorney General enters a consent to the reduction within 17 days. Otherwise, reversed and remanded.


author: Frank Holt, Justice.

text:
    Charles K. SMITH v. STATE of Arkansas
    CR 75-102
    528 S.W. 2d 389
    Opinion delivered October 6, 1975

      Shaver & Shaver, by: Tom B. Smith, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was found guilty of possession of marijuana with the intent to deliver in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1973). A three year sentence in the State Department of Correction was imposed. We first consider appellant’s contention that his conviction for possession with intent to deliver was contrary to the evidence and the state failed to meet its burden of proof. Appellant initially argues that most of the state’s principal witnesses were “admitted drug users and sellers” and their “admitted character and lack of truthfulness” so impeached their credibility that a conviction upon the testimony of these witnesses is contrary to justice and should not be sustained. We cannot agree because the credibility of witnesses and the weight accorded to their testimony is solely within the province of thejury. Murchison v. State, 249 Ark. 861, 462 S.W. 2d 853 (1971); Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225 (1969); and Rayburn v. State, 240 Ark. 264, 398 S.W. 2d 909 (1966). Certainly it cannot be said that their testimony is so inherently improbable and unbelievable that reasonable minds could not differ.

An arresting officer testified that he had information the appellant and a codefendant were in town for the purpose of selling a quantity of marijuana at a certain place and hour. The officer was waiting there when he saw the appellant drive up followed by a pickup truck. With consent, the officer searched the vehicle'appellant was driving and retrieved a box which, according to the evidence, contained marijuana. The witness, who was driving the pickup truck, testified he purchased a “lid” from the appellant that afternoon and marijuana was being kept in the box under the seat where the officer found it. This witness further testified that when he drove onto the parking lot to purchase the drug, he asked the appellant if he had the marijuana and he responded “yes.” Another witness testified that appellant admitted the “pot” was his. Although the state adduced other testimony to meet its burden of proof, the recited evidence alone is amply substantial when we consider it in the light most favorable to the state as we must do on appeal. Miller v. State, 253 Ark. 1060, 490 S.W. 2d 445 (1973).

Appellant further asserts that the trial court erred in permitting the state’s expert witness, a chemist, to testify with respect to a chemical analysis. Appellant first argues that the chain of possession of the marijuana was incomplete because only a carbon copy of the receipt, whoch showed delivery to the chemist by the officer, was introduced. Suffice it to say there is no evidence which indicates that the carbon copy is not an exact duplicate of the original. Neither can we agree with appellant that the copy should be excluded under the best evidence rule. In Lin Mfg. Co. of Ark. v. Courson, 246 Ark. 5, 436 S.W. 2d 472 (1969), we said:

The best evidence rule comes into play when the contents of a writing or its exact wording is an issue in the case. When, as in the case at bar, the existence of the writing is merely a collateral matter, the rule does not apply.

In our view this rule of law is applicable in the case at bar. The purpose of the introduction of the receipt was to establish evidence as to a chain of possession by showing a delivery was made. It was not for the purpose of establishing the terms of a writing. Neither can we agree with the appellant that the receipt was deficient as to identification purposes. It contains the name of the deliverer (the officer) and the recipient (the chemist); describes the evidence delivered; and indicates the charges, the names of the suspects involved and the date and time of the delivery to and receipt by the Arkansas Department of Health.

Appellant also argues that the testimony of the chemist was not admissible because he was not properly qualified as an expert. It is well established that the determination of an expert’s qualifications as a witness is within the sound discretion of the trial court and, absent an abuse of discretion, we do not reverse its decision. Ray v. Fletcher, 244 Ark. 74, 423 S.W. 2d 865 (1968); and Firemen’s Insurance Co. v. Little, 189 Ark. 640, 74 S.W. 2d 777 (1934). In the case at bar, the chemist has a degree in chemistry; has worked for the Arkansas Department of Health for the past two years; had received a three to four months’ in-service training in a drug abuse lab; had examined hundreds of samples to determine if they contained controlled substances; and testified many times in Various courts on the subject of chemical analysis. We have no hesitance in holding the trial court did not abuse its discretion in determining the chemist sufficiently met the qualifications of an expert witness.

Appellant next contends that the trial court erred in refusing to admit, for impeachment purposes, the previous written statement of a state’s witness into evidence. At trial, this witness admitted that his previous written statement was untrue. The court permitted the contents to be read to the jury; however, the court refused to admit it as an exhibit. We perceive no error. Where, as here, the witness admits he has made a contradictory statement, further proof becomes unnecessary and is inadmissible for impeachment purposes. Humpolak v. State, 175 Ark. 786, 300 S.W. 426 (1927).

Appellant’s final contention is that the court violated his constitutional right of equal protection of the laws by sentencing him to three years in the state penitentiary and then placed his codefendant on probation for three years. Appellant argues that the only factual difference between appellant and his codefendant in the sentencing procedure is that his codefendant pleaded guilty and appellant demanded a jury trial. Therefore, appellant argues that his demand for a jury trial resulted in a harsher sentence and a disparity of sentencing is a violation of his constitutional rights which guarantee equal justice for all. To this effect appellant cites United States v. Wiley, 278 F. 2d 500 (7th Cir. 1960) and Hess v. United States, 496 F. 2d 936 (8th Cir. 1974). We deem these cases inapplicable. In Wiley the court said:

The record abundantly shows that the court was fully informed as to the serious prior criminal records of convictions of all of Wiley’s co-defendants. **** The trial court’s own remarks show that he considered Wiley ‘a minor participant who stood trial.’

Even so, the trial court imposed a harsher sentence on Wiley than the other who pleaded guilty. Based upon this disparity in sentencing, the court set the sentence aside and remanded the cause with directions. The concurring opinion noted that the trial court stated it was his policy not to consider probation for a defendant who demands a jury trial. In Hess, the trial court indicated a harsher sentence was imposed because the defendant chose to exercise his constitutional right to a jury trial. In the case at bar, there is no evidence whatsoever that the court’s sentence was influenced by the fact the appellant exercised this right. Furthermore, there was ample evidence that the activities of the appellant indicated that he was active to a greater extent in illegal drug traffic than was his codefendant. No doubt the trial court properly took this into consideration. It is well established that the trial court is accorded great discretion to impose sentences within the legal limits as well as to suspend sentences. Thornton v. State, 243 Ark. 829, 422 S.W. 2d 852 (1968). In the case at bar, the appellant has not demonstrated any abuse of discretion.

Affirmed.


author: George Rose Smith, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. B. L. PRICE et al
    75-86
    527 S.W. 2d 907
    Opinion delivered October 13, 1975

      Thomas B. Keys and Philip JV. Gowen, for appellant.

      Lightle, Tedder, Hannah & Beebe, for appellees.
   George Rose Smith, Justice.

In this eminent domain action the highway department is taking 7.16 acres for the relocation of U.S. Highway 67, leaving the appellees’ 26-acre tract cut about half in two by the relocated highway. In appealing from a verdict fixing the landowners’ compensation at $37,000 the highway department argues two points for reversal.

First, it is insisted that the principal landowner, B.L. Price, gave no reasonable basis for his opinion, because he “demonstrated no personal familiarity with land values in the area.” That argument is rebutted by our holding in Ark. State Highway Commn. v. Fowler, 240 Ark. 595, 401 S.W. 2d 1 (1966), where we said that a landowner, because of his relationship as owner, is competent to testify about the value of his own property “regardless of his knowledge of [other] property values.” Here Mr. Price had lived on the farm for 29 years, had cultivated it ever since the days when mules were used to propel the plow, and obviously was familiar with the land in every particular. In the circumstances it cannot be seriously said that he had no reasonable basis for his opinion about the value of the land.

Second, an unusual situation arose with regard to the testimony of one of the landowners’ expert witnesses, Terral Huff. Mr. Huff, a real estate salesman for 25 years, had made three trips to the property in 1972 in the course of appraising it. He turned his handwritten notes over to Mr. Lightle, the landowners’ attorney. After that, Mr. Huff’s eyesight was so impaired by an accident that he was no longer able to read his notes.

At the trial, after Mr. Huff had testified about his inability to read the notes, the court permitted Mr. Lightle to introduce the notes and read them to the jury. Counsel for the highway department objected on the ground that Mr. Huff admitted that he could not recall from memory sufficient details to give his opinion about the before and after value of the property. It was argued that the department’s right to cross-examine the witness was actually being denied. That objection was overruled.

If the record ended at that point the appellant’s point might be well taken. The record, however, does not end there. Counsel for the department first cross-examined Mr. Huff about what he referred to in his notes as the “nuisance” damage. The witness explained that he meant that after the taking the dwelling house would be so close to the highway that the property would be hard to sell. Huff was then questioned about the 7 '/2-acre tract that was left on the west side of the relocated highway. Throughout the cross-examination the witness’s testimony was clearly and succinctly given. We find no indication that the witness’s defective vision impaired in any way the condemnor’s right of cross-examination. In fact, there was no renewal of the objection after counsel had completed a cross-examination which, although brief, was apparently as comprehensive and as searching as counsel wished. No abuse of the court’s discretion is shown.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Kathlynn Sue (Arledge) JOHNSON v. James Franklin ARLEDGE
    75-35
    527 S.W. 2d 917
    Opinion delivered October 13, 1975

      Holloway & Haddock, for appellant.

      E. W. Brockman, Jr., for appellee.
   John A. Fogleman, Justice.

This appeal involves the custody of Karen and Sarah Lynn Arledge, minor daughters of appellant and appellee, who were divorced by decree of the Chancery Court of Jefferson County entered April 19, 1968. Custody of the daughters and an older brother was awarded appellant and appellee was ordered to pay 1200 per month child support. On August 20, 1968, the chancery court granted the joint petition of the parties to permit appellant to remove the children to Texas. Between that time and March 12, .1974, numerous petitions and motions relating to support payments were filed. On the 31st day of August, 1970, the chancery court abated support payments by appellee for the months of January, February, and March 1970 because of appellee’s being unemployed, required him to pay $100 onto the registry of the court for money improperly withheld by him during June, July and August of 1970, and reduced the amount of the required support payments to $150 per month, payable in semi-monthly installments of $75 each. On March 7, 1974, appellant filed her petition alleging that appellee had removed their minor children from Texas to Arkansas, without her consent, and had failed and neglected to pay child support in violation of the chancery court’s decrees. Citation was issued on this petition requiring appellee to appear on March 11 to show cause why he should not be adjudged in contempt of court. Appellee responded with a general denial filed on March 12 and also filed a motion for a change in the court’s decree as to custody by awarding him custody of the two daughters, alleging that conditions had materially changed since the decree of divorce and other orders of the court and that the change in custody was in the best interest of the two children. The next day appellant filed a response denying that there was any change in conditions warranting a change of custody and alleging that his failure to comply with the custody and support orders of the court was intentional and that he should be denied any relief until he had complied with the court’s orders. Appellee also filed later responses alleging that he had complied with the orders of the court, that he didn’t remove the children without the consent and permission of appellant, denying that he had neglected to make required payments, and alleging that he had reduced payments with the consent of appellant and that she was barred from raising any question about his failure to make support payments.

A hearing on the various pleadings was held on August 27 and the court’s opinion was rendered on August 29 and a decree entered on September 6 for August 29. The chancery court held that the appellee was in arrears on his child support payments in the sum of $1,853.33, as of March 1, 1974. It found that appellee had not willfully violated the court’s orders in this respect because the evidence reflected that the children had spent much of the time after September 1, 1970 with appellee, the parties had agreed among themselves that appellee’s obligation could and should be reduced, and that appellee had been unemployed for a substantial period of time after September of 1970. The court also found appellee in contempt of court for removing the children from appellant’s home in Garland, Texas to his own home in Pine Bluff, Arkansas without sanction by the court or by appellant but declined to punish him for contempt, holding that there were extenuating and mitigating circumstances surrounding the removal. An attorney’s fee of $250 was awarded appellant.

Appellant argues that the court erred in changing its custody order, saying that the record was void of any change in circumstances. We certainly cannot say that the court’s change in custody was an abuse of discretion or that its holding in that respect was clearly against the preponderance of the evidence. There was evidence that appellant had lived with her present husband in the home with these children prior to their marriage and that the children were fully aware of the fact that they were not married and were informed of the marriage rather casually after an extended period of cohabitation. According to the children, relationships in the home deteriorated after appellant’s present husband moved into the home.

The son of the parties left and came to Arkansas sometime in 1973, because of his displeasure with the conditions. While some of his objections seem rather trivial and relate to his objection to strict discipline, he said that his mother and stepfather discouraged his participation in music or school activities, took one-third of his earnings for his room and board, objected to his using his mother’s pots and pans to prepare his own food, which they required him to do. He stated that appellant and her husband became very cold toward all three children and seemed not to want to have anything to do with them. He also related that at times appellant told the children that she hated them, called him vulgar names, and sometimes spoke to him disparagingly in front of his sisters. He stated that whenever his mother was displeased with him she would derogatorily compare him with his father. He was of the opinion that his sisters would be better off living with their father and stepmother in that, in contrast to their previous situation, they would have the benefits of affection. He said that he had left his sisters reluctantly.

Karen was 16 years of age on July 21, 1974. She had been living with her father and stepmother in Pine Bluff since March 6, 1974. She said that she had come home on the preceding Monday and had found that her mother was gone, leaving a note saying, “Karen, remember mother loves you no matter what happens.” She testified that her mother was out of town on numerous occasions for approximately a week at a time. She felt that after Mr. Johnson came into the picture there was not much of a home and that it was difficult for the children to get along with her mother and stepfather thereafter. She related that her mother had on occasions said that she would pay their father $100 per month if he would take the children and keep them happy. According to her, there was a complete lack of communication between children and parents but numerous arguments. Karen did not know of her mother telling neighbors to look in on them when she was away nor did she know of any occasion when anyone ever had. She stated that she was allowed $15 a week out of which she had to pay for her own meals, even when the family ate out, and that, after encouraging her to buy expensive clothing, Mr. Johnson took $4.50 per week out of her allowance until the clothing was paid for. She stated that there were marital difficulties between her mother and stepfather on several occasions. She expressed a decided preference for living with her father.

Sarah was 12 years old when she testified. Her testimony largely corroborated that of her brother and sister. She attributed the change in conditions at home to her mother’s association with her present husband. She said that her mother had told her that Johnson had given her the choice of living with him or with her children.

This testimony certainly indicates a decided change of circumstances after , the previous custody orders had been entered. It is quite significant to us that appellant did not testify and has nevér denied any of the statements made by her children under oath. .

Appellant argues vigorously that since appellee was in contempt of court for violation of its previous orders relating to custody and support of the children, the chancery court erred in modifying the custody decree. She relies upon Gilmore v. Gilmore, 239 Ark. 1140, 396 S.W. 2d 936; Casey v. Self, 236 Ark. 496, 367 S.W. 2d 114 and Carnes v. Butt, 215 Ark. 549, 221 S.W. 2d 416. These cases do not relate to changes of custody. Gilmore involved the effort of a father in contempt for willful disobedience of orders requiring payment of child support to have a reduction of the amount of payments required of him when cited for contempt. The others involved attempts of parties who had violated an injunction to test its validity on citation for contempt. Appellee did not question the validity of the previous orders. He did seek modification. However appropriate the holding in Gilmore may be where a modification of a support order is involved, the fundamental approach to custody cases in this state is incompatible with the rule appellant asks us to apply here. In cases where a change in a child custody decree is sought, our primary concern is for the welfare of the child and the desires of the parents are secondary. Townsend v. Lowrey, 238 Ark. 388, 382 S.W. 2d 1. The child’s welfare is the controlling consideration and custody is not awarded as a reward to, or punishment of, either parent. Nutt v. Nutt, 214 Ark. 24, 214 S.W. 2d 366; Miller v. Miller, 208 Ark. 1058, 189 S.W. 2d 371. It is well settled doctrine that, in considering modification of a previous award of custody, the courts should confide custody to the parent most suitable therefor. Kirby v. Kirby, 189 Ark. 937, 75 S.W. 2d 817. Our chancery courts have continuing authority to revise a child custody order upon changed circumstances, which, when considered from the standpoint of the welfare of the child, justify a transfer from one parent to the other. Myers v. Myers, 226 Ark. 632, 294 S.W. 2d 67. In this respect, modification of the decree rests in the discretion of the trial court. Phelps v. Phelps, 209 Ark. 44, 189 S.W. 2d 617.

In other jurisdictions in which proposed modifications of child custody orders are viewed in substantially the same light, the fact that the party seeking to gain or retain custody of a child has violated court orders or has been in contempt of court in that respect is a factor to be taken into consideration in the court’s exercise of discretion to grant or deny a modification of custody orders but is not so conclusive on the matter as to require the court to act contrary to the best welfare of the child. See Shaffer v. Shaffer, 61 Wash. 2d 669, 379 P. 2d 995 (1963); Kalousek v. Kalousek, 77 Idaho 433, 293 P. 2d 953 (1956); MacWhinney v. MacWhinney, 248 Minn. 303, 79 N.W. 2d 683 (1956); S v. G, 298 S.W. 2d 67 (Mo. Ct. App. 1957); Foster v. Foster, 300 S.W. 2d 857 (Mo. Ct. App. 1957); Holland v. Holland, 150 Colo. 442, 373 P. 2d 523 (1962). See also, Kahn v. Kahn, 252 A. 2d 901 (D.C. Ct. App., 1969); Sullins v. Sullins, 280 P. 2d 1009 (Okl. 1955); Jones v. White, 209 Ga. 412, 73 S.E. 2d 187 (1952). To hold otherwise, we would have to permit the desire to punish a parent to override the paramount consideration in all child custody cases, i.e., tbe welfare of the child involved. We have heretofore said that the courts must be keenly alert to the necessity of preventing the shortcomings or merits of the parents from overshadowing tha* which is best for the child. Carr v. Hall, 235 Ark. 1044, 363 S.W. 2d 223. The chancellor committed no error in this respect.

Appellant’s remaining point gives us some concern. The chancellor held that appellee was in arrears in the payment of child support in the sum of $1,853.33, based upon the court’s records of payments made. He made it quite clear that this finding was for the purpose of considering the charge of contempt of court in violation of the court’s decrees. After making this finding, the court held that appellee had not willfully violated the court’s orders for support payments because the children had been with him a great deal of the time during which the arrearage accrued, he had been unemployed for a substantial time during that period, and the parties had agreed between themselves that his obligation could and should be reduced.

We cannot agree with appellant that this action constituted an attempt by the court to modify its decree retroactively or to remit accumulated arrearages. The chancellor has not indicated that appellee was relieved of his obligation to pay the amount due appellant for child support. He simply held that appellant’s violation of the order was not willful and contemptuous. We do agree with appellant, however, that appellee should be required by the court to pay whatever amount of child support payments was due appellant. We would render a judgment her? if we could be certain what that amount was and of the manner in which payment might best be enforced. The record is incomplete on this point because the court would not permit it to be developed due to an erroneous view of pleading requirements.

Appellant had alleged in her petition that appellee had failed and neglected to pay the sums ordered to be paid, praying that he be cited for contempt of court. After appellee filed his motion to change the custody of the two daughters, appellant filed a response containing allegations that appellee had failed to comply with the court’s orders providing for child support. Her prayer was that his motion be dismissed, that he be found in contempt of court and punished therefor, and “for all proper relief”. Appellee filed a response alleging that the parties had entered into an agreement for a reduction of payments and that appellant was barred from raising any question concerning his alleged failure to make support payments.

After appellant’s trial counsel had thoroughly examined appellee about his arrearages, appellee’s attorney claimed surprise if appellant was seeking judgment for these arrearages. Appellant’s attorney stated she was. The chancellor ruled that she could not pursue this remedy, since there was not a prayer for judgment in any of her pleadings, unless he granted permission for her to amend her pleadings to conform to the proof. Appellee’s attorney later moved that the pleadings be amended to conform to the proof and that his client be permitted to plead the three-year statute of limitations. Appellant’s attorney jqined in the motion. The court, noting that appellant had actually previously moved for such an amendment, denied both motions, over the objections of both parties, clearly indicating that this ruling was based upon the earlier one that there was no specific prayer for judgment for arrearages. He stated that the matter of back child support was pertinent, under the pleadings, only to the contempt issue and that no judgment for arrearages would be granted. Appellant then rested her case upon the court records of payment and appellee did not offer any evidence other than his own testimony previously given. The chancellor indicated that he might, if he found appellee in contempt, fix terms for payment of the arrearages.

Even though appellant did not specifically pray for judgment for arrearages, she was, in equity, under her prayer for general relief entitled to any relief in equity that would be justified upon proof of the facts alleged. Whitten Developments, Inc. v. Agee, 256 Ark. 968, 511 S.W. 2d 466; Jackson v. Jackson, 253 Ark. 1033, 490 S.W. 2d 809; Realty Investment Co. v. Higgins, 192 Ark. 423, 91 S.W. 2d 1030. The actual result of our decisions is that, where a plaintiff in equity asks for particular relief, he cannot be granted relief inconsistent with that sought, in the absence of a prayer for alternative relief and pleadings by him so framed as to put the facts reflected by the evidence in issue. Baldwin v. Brown, 166 Ark. 1, 9, 265 S.W. 976, 979, on rehearing; Realty Investment Co. v. Higgins, supra. A judgment for arrearages was not inconsistent with the specific relief sought and, as the court recognized, the amount of the arrearages was clearly in issue.

Still we cannot say, with assurance, that the evidence was fully developed on this issue, so the case is remanded to the trial court for a determination of the amount for which appellant may be entitled to judgment for child support arrearages.

Roy, J., not participating.

      See, however, Jackson v. Jackson, 253 Ark. 1033, 490 S.W. 2d 809, as to the statute of limitations.


text:
    Freddie Dean FREEMAN, John Arthur BOWDEN and Walter BOWDEN v. STATE of Arkansas
    CR 75-13
    527 S.W. 2d 909
    Opinion delivered October 13, 1975

      Harold Hall, Public Defender, by: John W. Achor, Dep. Public Defender, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellants Freddie D. Freeman, John Arthur Bowden and Walter Bowden were found guilty of the murder of W. C. Anderson in the perpetration of a robbery and sentenced to life imprisonment. For reversal of their conviction, they assert error in refusal to grant separate trials, in admission of the testimony of a physician, of a confession of Walter Bowden, and of photographs of, and testimony about, an automobile belonging to Freeman. We find reversible error in the admission of the confession.

Anderson was killed on December 29, 1973 in North Little Rock. On December 31, 1973, about 9:30 A.M., Lt. Tucker and Sgt. May of the North Little Rock Police Department went to Southern Farms, where they found Walter Bowden, whom they took to the Homicide Squad Room at the North Little Rock Police Department, after having given him warnings about his constitutional rights as to interrogation pursuant to the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1965). There they interrogated Walter about his activities on the day of the homicide. When they were not satisfied with his answers, they obtained his consent to a polygraph examination, arranged for it to be conducted by Lt. Bob Bailey at Conway on New Year’s Day, and held Walter in the North Little Rock jail overnight. Walter had been told that he was a suspect in the homicide, but had not been charged. Although the officers did not consider that Walter was under formal arrest at the time, they said he was incarcerated, he was not free to leave but was kept in a cell. The circuit judge quite correctly held that, in actuality, he had been arrested.

After the test, shortly after noon, Walter was returned to the jail in North Little Rock. About 2:30 P.M., a new interrogation was commenced, after a new warning had been given Walter. When asked if he wanted to contact an attorney, he stated that he did not, but would like to contact his uncle, Jim Lindsey. Walter was permitted to call Lindsey, told the officers his uncle was coming down, and said that he did not want to make any statement until Lindsey came. Lindsey had not arrived by 3:30. Walter told Tucker that he had knowledge of the crime, but didn’t kill anyone and kept asking, “Well, I didn’t kill anybody, what charge are you going to place against me?” Tucker then contacted Pulaski County Deputy Prosecuting Attorney Jim Hamilton, who came to the jail about 4:10 P.M. Tucker told Hamilton, “We have a murder”. Hamilton was informed of what had taken place by Tucker, in particular the preliminary result of the polygraph test and Walter’s statement and question about charges. Walter asked Hamilton, “When I give a statement, do you have any idea what I will be charged with?”, or “When I give my statement, what’s going to happen to me?” Hamilton had been told that Walter had said he was present but didn’t kill anybody. Hamilton advised Walter that he could not make any promises but told Walter that if he had committed a crime, it was probably one that would not result in more than 21 years’ incarceration. Hamilton then left and Tucker received an affirmative reply when he asked Walter if he wanted to give a statement. Tucker reread a statement of Walter’s constitutional rights, after which Walter, who had then been in jail about 30 hours, made a statement admitting his participation in the robbery of Anderson, in planning it with Freeman, soliciting John’s participation and going with both to the scene in Freeman’s automobile, waiting for them and driving them away from the scene. The statement implicated both the others in the killing, but exonerated Walter from actual participation in person in the killing of Anderson in the perpetration of the robbery. Walter commenced the statement at 4:21 P.M., and by 4:36 P.M., it was completed, typed by Tucker and signed by Walter and by Tucker and May as witnesses.

Walter’s version was that he was promised a 21-year sentence if he were to give a statement and testify against the other two and that he signed the statement because of this promise and the threat that he would get the death penalty if he did not. Both Hamilton and Tucker deny that any mention was made of the death penalty.

On January 8, 1974, Walter was charged with robbery by an information filed by another deputy prosecuting attorney. Hamilton had related what had happened at the North Little Rock police station to other deputy prosecuting attorneys and played a minimal part in the decision on the filing of charges against the three appellants in that he only conveyed information to those who made the decision. It was Hamilton’s opinion, at the time, that Walter should be used as a witness against the others, because he had been cooperative. He stated that Walter continued to cooperate until he talked with the public defender. A first degree murder charge was filed against Freeman and John, but not Walter, on January 14. It was not until April 10 when an amended information was filed that all three were charged with the murder.

Motions for severance were filed by all three on June 18, 1974. On July 3, the state demanded the death penalty and the motions to sever were granted. On July 23, upon the state’s waiver of the death penalty, the state’s motion to consolidate was granted and the order granting a severance set aside. On July 15, the prosecuting attorney had written a letter to the public defender, who had been appointed to represent all three appellants, in which he offered to waive the death penalty if Freeman and John entered pleas of guilty to the murder. He further offered to nolle prosequi the murder charge against Walter if he would plead guilty to the charge of robbery and to recommend a sentence of ten years and to waive the death penalty as to John and Freeman if he would testify against them should they plead not guilty. Walter declined this offer in a hearing before the circuit judge, in camera, on July 22.

In reviewing the admission of a confession over an objection for alleged involuntariness, we make an independent determination based upon the totality of the circumstances and reverse the action of the trial judge only when we find his finding to be clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515. Of course, a confession given by an accused while in custody is presumed to be involuntary, and the burden of proving that it was actually voluntary rests upon the state. Scott v. State, 251 Ark. 918, 475 S.W. 2d 699; Johnson v. State, 248 Ark. 184, 450 S.W. 2d 564, (on petition for post-conviction relief) 249 Ark. 268, 459 S.W. 2d 56.

In order to be voluntary, a confession must have been made in the absence of threat of injury or promise of reward and free from the taint of official inducement proceeding from either hope or fear. When threats of harm or promise of favor or benefits are used to extort a confession, it is attributable to such influences and not voluntary. Dewein v. State, 114 Ark. 472, 170 S.W. 582; Brown v. State, 198 Ark. 920, 132 S.W. 2d 15. It must not be induced by promises, either express or implied, by the officer having the accused in custody or by any other person in authority, and, if a confession is made under the influence of hope of mitigation of punishment' excited by those in authority, it is inadmissible. Hardin v. State, 66 Ark. 53, 48 S.W. 904; Brown v. State, supra.

Even though we give full credit to the testimony of the deputy prosecuting attorney who talked with Walter that he made no promise to Walter and that he specifically stated that he had no authority to do so, the conclusion that Walter was justified in feeling that there was an implied promise of leniency is inescapable when we view all the circumstances, including the course of events following his confession. We must hold that the confession was involuntary and inadmissible.

We deem it unnecessary to consider the argument of the appellants regarding severance because we cannot anticipate that the question will arise again or the context in which it might arise, because of our holding as to Walter’s confession. Two other questions raised by appellants will likely arise on retrial. The first is the contention that the testimony of Dr. James Harper Bledsoe about a bullet wound suffered by John was admitted in violation of the physician-patient privilege. The other relates to the admissibility of testimony pertaining to an automobile owned by Freeman.

The victim of the robbery was found slumped in his chair. In his lap there was a .38 caliber pistol that he been fired recently. After finding this situation, Patrolman Paul Hale of the North Little Rock Police Department went to the University Medical Center and arrested John, whom he found lying on an x-ray table. John had been taken to the emergency room there about noon. Lt. Tucker came there about 5:00 P.M. and witnessed the administration of a trace metal test on John. Two black males had been seen between 11:00 and 11:30 A.M. leaving Anderson’s used car lot under circumstances from which it might have been inferred that one of them had been injured. Gunshots had been heard from the lot. Dr. Bledsoe testified that he was the physician at the University Medical Center who examined and treated John there on December 29, 1973 and that any inquiry or examination he made of John was for the purpose of treating and prescribing for him. Over the objections of John’s attorney, Bledsoe was permitted to testify that John had suffered a gunshot wound to his lower abdomen inflicted by a large caliber bullet (larger than .22, perhaps as large as .45), that there was no exit wound, that the bullet was not then removed, because it was too dangerous to the patient to do so at the time, that it should have been removed when John’s condition was more stable, that John was his patient for nine or ten days, and, according to his records, it had not yet been removed.

The physician-patient privilege is incorporated into Ark. Stat. Ann. § 28-607 (Supp. 1973), which provides that no person authorized to practice medicine or surgery shall be compelled to disclose any information acquired from his patient which was necessary to enable him to prescribe as a physician or do any act as a surgeon. The privilege is purely statutory. Wimberly v. State, 217 Ark. 130, 228 S.W. 2d 991; Norton, Privileges, 27 Ark. Law Review 211 (1973). In Ragsdale v. State, 245 Ark. 296, 432 S.W. 2d 11, we held the statute applicable in criminal cases, but there we did not have a situation in which the provisions of a later statute, Ark. Stat. Ann. § 42-501 (Repl. 1964) were applicable. Without having considered the latter statute’s application where the accused was the patient, we have said that the former was not intended to be the means of protecting a criminal from just punishment. Edwards v. State, 244 Ark. 1145, 429 S.W. 2d 92; Wimberly v. State, supra. Even so, the language of Wimberly, where the victim was the patient, rather than the accused, is fully applicable here, where the accused was the patient invoking the privilege. We said: We have no hesitation in holding that, for the policy reasons quoted, if for no other, the privilege stated in Ark. Stat. Ann. § 28-607 (which was, insofar as material here, incorporated in the Revised Statutes of 1838) is qualified by the provisions of Ark. Stat. Ann. § 42-501 — 503 (Repl. 1964), adopted in 1949. See Norton, Privileges, 24 Ark. Law Review 211, 212. But the qualification must be limited to that information required of a physician or surgeon called upon to render first aid treatment. Ark. Stat. Ann. § 42-502 requires that such a physician or surgeon report to the office of the county sheriff or to a regular member of the police force, the name, áge, sex, color, and location of the injured person and the name of the person bringing the patient in for treatment. Here the court permitted the examination of this witness to extend beyond appropriate bounds. Dr. Bledsoe’s description of the wound and its location was not in violation of the privilege, but the statute requiring the report certainly does not call for the surgical treatment prescribed or the fact that the bullet had not been removed. The privilege operates to exclude information obtained for diagnosis and treatment by means other than communications by the patient, diagnosis for treatment or surgery as well as the information on which it is based, treatment prescribed as a result of the information gained, and descriptions of the patient’s condition or the extent of his injuries. See Ragsdale v. State, 245 Ark. 296, 432 S.W. 2d 11; Brotherhood of Railroad Trainmen v. Long, 186 Ark. 320, 53 S.W. 2d 433; National Benevolent Society v. Barker, 155 Ark. 506, 244 S.W. 720; St. Louis, I. M. & So. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S.W. 786; Brown v. Brown, 181 Ark. 528, 27 S.W. 2d 85; Duff v. Ayers, 156 Ark. 17, 246 S.W. 508; Poinsett Lumber & Mfg. Co. v. Longino, 139 Ark. 69, 213 S.W. 15; Coca-Cola Bottling Co. v. Strather, 192 Ark. 999, 96 S.W. 2d 14. Thus, the doctor’s testimony about the danger of removal of the bullet, the prospect of removal, and the failure to remove it should have been excluded.

... a construction which would serve as a cloak for crime should not be placed upon a statute which as we have said, was enacted “to prevent physicians from disclosing to the world the infirmities of their patients.” The State has a vital interest in the protection of its citizens from acts of violence. It would be unreasonable to say that a physician must report his treatment of a gunshot wound to a peace officer, but that the State cannot call him to testify as to the nature, location and extent of such wounds in a court of law.

This brings us to the very difficult problem relating to the seizure of Freeman’s automobile and the admission of photographs of it taken after seizure. A motorist, whose attention was attracted by commotion at Anderson’s used car lot at the time of the robbery, saw two black males, one of whom was bent over holding his stomach, run from Anderson’s office to an automobile, which was driven away after both had gotten into it. He followed this car for one block. He described it as a gold Buick with white top and black pin stripes running from the door to the back taillight. He said he had never seen a car striped as this one was. He identified photographs that the police had taken of Freeman’s automobile as showing the one he had described, and said that he had seen it on the North Little Rock Police Department’s parking lot between the time of the robbery and the time of trial. This witness said he had been present when it was photographed at the parking lot. Another witness who had been in the car with the motorist also identified the vehicle in the photograph as the one in which he saw three black males fleeing the scene. He described the color of the vehicle as “brownish and white”. Still another motorist, who looked toward the used car lot when he heard two shots, saw the fleeing males get into a gold car a block away. He testified that the photographs showed a vehicle that was the “right color” and that one of the defendants “looked like” one of those he saw fleeing. A pedestrian, who had been about a block away from the lot only saw the rear of the car from a distance but said that one of the photographs looked like the car he saw. A witness, who was in the emergency room at the University of Arkansas Medical Center when John was brought there, identified Freeman as the person who brought him. He said that after giving a clerk there some information Freeman left in a car he identified from the photographs that had been introduced in evidence. Another witness corroborated the testimony and described the vehicle in which Freeman departed as a gold Buick Wildcat.

On January 2, 1974, Lt. Tucker and Sgt. May, having a warrant for the arrest of Freeman, went to 1319 Gaines Street in Little Rock. There Tucker observed a 1969 Buick Wildcat bearing Arkansas license place DLY 571 parked behind the residence at that address. The color of the body of the automobile was gold. It had a white top. It matched the description given by witnesses. Tucker and May saw a negro male and two females get into another automobile in front of this residence and drive away. They followed the vehicle about two blocks. Seeing that the male was Freeman, they stopped the car in which he was riding and arrested him.. After the arrest, the officers, with Freeman in custody, returned to 1319 Gaines Street and observed that the vehicle they had seen at the rear of the premises remained there. Lt. Tucker thought the vehicle should be impounded. Tucker advised Freeman that they were going to seize the car for identification purposes. Tucker prepared to call a wrecker to tow the vehicle away, but after being told that he could either let one of the officers drive the car or he would be “out” the towing charge, Freeman stated that he did not want to pay for a wrecker and that one of the officers could drive the vehicle to North Little Rock Police Headquarters. It was taken there by Sgt. Hightower. Photographs of the vehicle, later introduced in evidence, were then taken. Thereafter, it was released to Freeman’s sister at his request.

Appellant’s motion to suppress these photographs was denied. The state endeavors to justify the seizure as incident to his arrest. But we cannot agree that this seizure falls within the ambit of seizures permissible as such. It has long been recognized that different standards for determining reasonableness of searches are applied where automobiles rather than dwelling houses, places of business or other structures are involved, because of the mobility of vehicles. See Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1924). No reason appears why the guidelines for testing reasonableness of seizure of automobiles should be different than those followed in regard to searching them. See generally Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, rehearing denied 400 U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1969).

The validity of a warrantless search, and hence a seizure, is, first dependent upon the existence of probable cause, unless it is incident to a lawful arrest. It cannot seriously be urged that the seizure of Freeman’s automobile was incident to his arrest two blocks away from where he was first seen and where the officers had earlier observed his car. In order to justify a seizure on this ground, the vehicle must have been in the immediate vicinity of the arrest, which has been confined to the area within the immediate control of the person arrested, i.e., the area from which he might gain possession of a weapon or other instrument which might be useful in effecting an escape or destructible evidence. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), rehearing denied 396 U.S. 869, 90 S. Ct. 36, 24 L. Ed. 2d 124 (1969); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1970). See also, Steel v. State, 248 Ark. 159, 450 S.W. 2d 545; Vale v. Louisiana, 399 U.S. 30, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970); James v. Louisiana, 382 U.S. 36, 86 S. Ct. 151, 15 L. Ed. 2d 30 (1965).

We do not think it can be said that there was not probable cause for the seizure of the automobile. This alone, however, cannot justify a warrantless seizure, not incident to arrest. An additional requirement needed to justify the seizure without first securing a warrant under the “automobile exception” is the existence of exigent circumstances. Coolidge v. New Hampshire, supra; Chambers v. Maroney, supra. The state bore the burden of showing the existence of such exigencies. Coolidge v. New Hampshire, supra; Vale v. Louisiana, supra, it seems that in order to do so in this case, it must have been shown that it was not practicable under the existing circumstances to secure a warrant. Coolidge v. New Hampshire, supra; Vale v. Louisiana, supra. The vehicle was not stopped or abandoned on the open highway. It was not taken into police custody to safeguard the owner’s property or to protect the public safety. The possible connection of the vehicle with the Anderson murder was known to the officers when they initially saw it at the Gaines Street address. It was not at the time being used for any illegal purpose and Freeman, if he was trying to escape and avoid arrest, was not using it for that purpose. There was no way that he could have had access to the car after he was arrested. Lt. Tucker and Sgt. May participated in the arrest and at least two other officers, one of whom drove the vehicle to North Little Rock, were en route. There was no indication that there was any danger that the other occupants of the vehicle from which Freeman was taken might remove the vehicle from the premises before a warrant for its seizure could be obtained and executed, even if we should assume that these females were his confederates. If that danger did exist, however, no reason appears why the two officers other than Tucker and May could not have maintained a guard sufficient to prevent the removal of this evidence, or why additional officers could not have been summoned to lend assistance in this respect. The precepts of Coolidge prevent our holding that exigent circumstances justified the seizure. See also, Trupiano v. United States, 334 U.S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663 (1947); Vale v. Louisiana, supra.

Coolidge likewise bars our sustention of the seizure under the “plain view” doctrine. Because of the fact that in most cases any evidence seized by the police is in plain view at the moment of seizure, the Coolidge court stated the problem as identification of the circumstances in which plain view has legal significance rather than being the normal concomitant of any search, legal or illegal. The cases upholding searches and seizures under the “plain view” doctrine have one factor in common, i.e., the police officer had a prior justification for an intrusion in the course of which he came upon a piece of evidence incriminating the accused. The “plain view” exception cannot justify police seizure where there is an absence of exigent circumstances which effectively nullify the opportunity to obtain a warrant in advance, where a trespass is necessary to effect the seizure and where the seized object is not contraband, stolen goods or dangerous in itself. In this case the authorities had ample time to obtain a warrant and the circumstances did not necessitate immediate seizure. On the present record, we cannot say that the photographs of the car were not an exploitation of an illegal seizure. See Durham v. State, 251 Ark. 164, 471 S.W. 2d 527; Wong Sun v. U.S., 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). There is a possibility that we might have considered this as harmless error, if it were not necessary to reverse the case on other grounds. Still, it seems where error is of constitutional proportions, it is not harmless unless the evidence supporting a conviction is otherwise overwhelming. Consequently, we could not, on this appeal, since a retrial is necessary, treat the admission of this evidence as harmless error. We do not mean to indicate, however, that testimony of the officers about their observation of the vehicle from the street and its description as then observed would not have been admissible under the “plain view” doctrine. See United States v. Corbett, 518 F. 2d 113 (8 Cir., 1975).

Of course, it cannot be argued seriously that Freeman’s agreement that the police officer could drive the car to the police station constituted consent to its seizure under the circumstances. The only alternative was that it would be towed there at his expense.

The judgment is reversed and the cause remanded for a new trial.

Roy, J., not participating.

      In order to simplify identification of the parties, we will hereafter refer to Walter Bowden as Walter, John Arthur Bowden as John and Freddie Dean Freeman as Freeman.


text:
    J. P. PRICE LUMBER COMPANY and AMERICAN MUTUAL INSURANCE COMPANY v. Meade ADAMS
    75-90
    527 S.W. 2d 932
    Opinion delivered October 13, 1975

      Riddick Riffel, for appellants.

      Paul K. Roberts, for appellee.
   Conley Byrd, Justice.

It is conceded by the appellants, J. P. Price Lumber Company and American Mutual Insurance Company, that appellee Meade Adams is totally disabled and that he is in need of medical services. The issue here, however, is whether the Workmen’s Compensation Commission was correct in relieving the appellants from the obligation of paying Mrs. Meade Adams $65.00 per week for her custodial services. This matter comes to us from an order of the circuit court setting aside the Commission’s order and reinstating the payments.

The record shows that as a result of a compensable injury Meade Adams developed depressive neurosis with hysterical symptoms resulting in his total disability. In a prior proceeding the Commission recognized that Mr. Adams needed custodial care and directed appellants to pay Mrs. Adams $65.00 per week for this care. The next proceeding before the Commission arose after appellants had Mr. Adams examined by Dr. John Howard, a psychiatrist.

Mrs. Adams gave a description of Mr. Adams’ depressive neurosis, including how he would walk the floor until 2:00 to 3:00 a.m. It is her fear, based upon her observations, that Mr. Adams will commit suicide. When not in one of his depressed periods, Mr. Adams sometimes mows the lawn and will do some work in the garden. On such occasions, however, his hands take on the same appearance that one would expect them to have if they were real cold. Mrs. Adams spends all of her time with Mr. Adams with the exception of five hours each week. On those occasions, she gets some adult member of her family to stay with Mr. Adams while she does the family shopping.

Dr. John G. Howard testified that Mr. Adams was suffering from depressive neurosis with hysterical symptoms and that motivation was one of Mr. Adams’ problems. It was his opinion that Mr. Adams should be in a day care program such as that furnished by the State Hospital or a private source such as Cedar Stone Lodge.

Dr. F. M. Westerfield, Mr. Adams’treating psychiatrist testified that Adams was suffering from a depressive neurosis with symptoms of apathy, depression, listlessness and disinclination to engage himself in useful social or industrial activities; that Mr. Adams had no motivation and had a tendency to rely more and more on his wife to make decisions for him; and that the only substitute for the wife’s care would be for Mr. Adams to volunteer for the program offered by the State Hospital or Arkansas Rehabilitation Service. On the question of Mr. Adams volunteering for such programs Dr. Westerfield testified as follows:

“Q. .... But unfortunately he’s got to have some motivation to even volunteer for that, or even accept the suggestion, hasn’t he?
A. Yes.
Q. And unfortunately he doesn’t have that motivation at this time, does he?
A. No.
Q. Doctor Westerfield, until we come up with something better would you recommend that his wife keep on doing the best she can for him?
A. Is there any way I can side-step that answer?
Q. No, sir, until we can do something better now. I mean this as a practical matter.
A. He’s better off at home with his wife than being a permanent resident of a psychiatric institution. In that way that’s the better thing. Still I would like to keep the option of trying some of these other things, if possible.”

On redirect examination Dr. Westerfield stated that the resistance to the programs that he had suggested came from Mr. Adams’ family; that when he tried to pin Mr. Adams down to take action, Mr. Adams would become so anxious and fearful that he could not bring himself to do it; and that when he approached Mrs. Adams with the idea, she became hurt and resentful, feeling that somehow he was making an attack upon her when that was not the point at all. Dr. Westerfield, while emphasizing that Mr. Adams’ lack of motivation did not come from malingering, did acknowledge that the fact Mrs. Adams was paid for her custodial care reduced or decreased Mr. Adams motivation to do something better.

We have stated the foregoing facts in the light most favorable to the Commission’s findings and conclusions, as we must for purposes of determining whether there is any substantial evidence to support the Commission’s findings and conclusions. Upon a review of the record we must say that a close issue of fact was presented to the Commission, and we cannot say that the Commission’s findings and conclusions are not supported by substantial evidence.

Consequently, it follows that the circuit court erred in setting aside the Commission’s order.

Reversed and remanded with directions to reinstate Commission’s order.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    Michael ALEXANDER v. STATE of Arkansas
    CR 75-109
    527 S.W. 2d 927
    Opinion delivered October 13, 1975

      B. Michael Easley, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

The controlling issue on this appeal by Michael Alexander is whether an uncounseled misdemeanor conviction permitted under Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), because only a fine was assessed, can be used as the sole basis to revoke a ten year suspended sentence entered upon a negotiated plea to burglary and grand larceny charges.

The record shows that on January 23, 1973, appellant was charged with burglary and grand larceny. After a determination of indigency, a lawyer was appointed to represent appellant, and on January 26, 1973, he entered a negotiated plea of guilty and received a ten year suspended sentence on both charges. Thereafter, on February 6, 1973, appellant was arrested on assault and battery charges instituted by Charles Tittle, appellant’s back door neighbor. On February 7, 1973, appellant pled not guilty and was tried upon the charge before the municipal court without benefit of counsel after the municipal judge had announced that upon conviction a fine only would be assessed. The fine assessed by the municipal court was $25.00 plus $16.50 costs for a total of $41.50. Appellant laid the fine out in jail. Within two hours after appellant was released from jail, he was picked up on a warrant issued on the State’s request for a revocation of the suspended ten year sentence. Of course, at that time it was too late to take an appeal from the municipal court. Counsel was appointed for appellant at the revocation hearing, but at that hearing the trial court revoked the ten year sentence upon the sole ground that the municipal court conviction violated the good behavior condition of the suspended sentence. The trial court would not permit evidence to be introduced by appellant showing the facts giving rise to the municipal court conviction.

Appellant did not appeal from the revocation but later filed a post-conviction proceeding pursuant to Criminal Procedure Rule §\. At that hearing he testified that he went over to Tittle’s house to ask Tittle to leave appellant’s wife alone, that while there Tittle backed his car across appellant’s foot and then he hit Tittle.

In considering the right of an indigent to the appointment of counsel in misdemeanor cases, the United States Supreme Court in Argersinger v. Hamlin, supra, commented as follows:

“We must conclude, therefore, that the problems associated with misdemeanor and petty offenses often require the presence of counsel to insure the accused a fair trial. MR. JUSTICE POWELL suggests that these problems are raised even in situations where there is no prospect of imprisonment. Post, at 48. We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail. And, as we said in Baldwin v. New York, 399 U.S., at 73, ‘the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or ‘petty’ matter and may well result in quite serious repercussions affecting his career and his reputation.’
We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”
* * *
“Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.
The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.”

Obviously, Argersinger v. Hamlin, did not involve the collateral use of a municipal court conviction and in the language used, the authorities are divided as to whether an uncounseled municipal court conviction involving only a fine can be used to revoke a suspended sentence or to enhance one’s length of imprisonment on a second or subsequent conviction. See Cottle v. Wainwright, 477 F. 2d 269 (5th Cir. 1973); Marston v. Oliver, 485 F. 2d 705 (4th Cir. 1973); State v. Reagan, 103 Ariz. 287, 440 P. 2d 907 (1968) and State v. Kirby, 33 Ohio Misc. 48, 289 N.E. 2d 406 (1972).

As pointed out by a law review writer in Argersinger v. Hamlin and The Collateral Use of Prior Misdemeanor Convictions of Indigents Unrepresented By Counsel at Trial, 35 Ohio St. L.J. 168 (1974), one can syllogistically reason that since a municipal court conviction without counsel and involving only a fine is permitted under Argersinger v. Hamlin, then the. conviction is valid and can be used collaterally to revoke a suspended sentence, even though the proximate effect of the conviction, as in this case, is to send the indigent to prison for ten years. This line of reasoning, of course, would soon vitiate the theory on the right to counsel as stated in Argersinger v. Hamlin, and would appear to be contrary to the last paragraph of the opinion which states:

“The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.”

The latter approach appears to us to be the more logical approach to one’s right to counsel. As demonstrated here, the appellant did not know that his mere conviction for Assault and Battery in municipal court would result in the revocation of his suspended sentence, and the municipal judge did not know that appellant had a suspended sentence. Consequently, we interpret Argersinger v. Hamlin as holding that an uncounseled municipal court conviction involving only a fine, and valid for that purpose, cannot be collaterally used to deprive a person of his liberty.

All of the authorities recognize that an indigent is entitled to the appointment of counsel at a revocation hearing, but if we accept the State’s argument here, the obvious question arises: Why should counsel be appointed at this late date, when the uncounseled municipal court conviction itself amounts to a revocation of the suspended sentence? To ask the question, as a practical matter, is but to answer the question that it was at the municipal court that the indigent needed counsel. Therefore, it follows that an uncounseled municipal court conviction cannot be used for the purpose of revoking a suspended sentence as the net effect thereof is “the actual deprivation of a person’s liberty” without “the guiding hand of counsel.” Of course, this does not mean that the responsible officials cannot show that the facts giving rise to the municipal court conviction are sufficient themselves to revoke the suspended sentence.

Reversed and remanded with directions to set aside the revocation of the suspended sentence.

Harris, C.J., Fogleman, J., dissenting; Elsijane Roy, J., not participating.

John A. Fogleman, Justice,

dissenting. I respectfully dissent. Even if we should eventually reach the result the majority does, in a proper case, I submit that this is not such a case, that Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), does not mandate the result reached, and that the authorities cited do not support it. I would affirm the judgment.

It should be noted that appellant was represented by counsel when his sentence was suspended and when the suspension was revoked. He was prosecuted by city officials on the charge of assault and battery. There is nothing to show that the municipal judge or any of the city officials were aware of Alexander’s suspended sentence or that there was any reason to expect them to have been. There is nothing to indicate that the prosecuting attorney or any county law enforcement officer was aware of the charge of assault and battery until after the conviction. It was quite natural that the state did not move to revoke the suspension of sentence until after the assault and battery conviction had become final. Even though it is not required that the state await the final disposition of a charge that would violate the terms of suspension of a previous sentence before moving to revoke the suspension, it is considered the better practice to do so. Alexander knew, or should have known, when he was tried in the municipal court that a finding that he was guilty of assault and battery would jeopardize his continued liberty under the suspension of sentence. So far as we know, he is the only one in the courtroom who did. Yet there is nothing to show that he called this matter to that court’s attention when he proceeded to trial without the assistance of counsel. The idea that he did not have any reason to know that an assault and battery was not good behavior seems preposterous to me.

Argersinger does not operate to invalidate Alexander’s conviction of assault and battery. This is clearly recognized by the writer of Argersinger v. Hamlin and the Collateral Use of Prior Misdemeanor Convictions of Indigents Unrepresented by Counsel at Trial, 35 Ohio St. L. J. 168 (1974), even though its author bitterly bewails that fact, sharply criticizes the U.S. Supreme Court for not so holding, and says that the court’s reasoning and its holding do not coalesce. That author says that the holding is narrow and does nothing more than bar a jail sentence. She says:

****It fails to speak to the constitutionality of the underlying conviction. **** (p. 169)
**** Yet it is the sentence that determines whether counsel is constitutionally required. **** (p. 174)
**** Therefore, the Court’s focus on sentencing cannot be explained by asserting the Court concluded that only uncounseled misdemeanor trials resulting in loss of liberty are inherently unconstitutional, (p. 175)
**** Because Argersinger was limited to sentences of imprisonment, a distinction must be made between convictions which result in imprisonment and those which do not. **** (p. 176)
These collateral uses of previous convictions to enhance punishment should be disallowed if the previous conviction is constitutionally invalid under Argersinger. **** (p. 178)
**** Burgett [Burgett v. Texas, 389 U.S. 109 at 114-16, 88 S. Ct. 258, 19 L. Ed. 2d 319] and Tucker [United States v. Tucker, 404 U.S. 443 at 447-48, 92 S. Ct. 589, 30 L. Ed. 2d 592] indicate that constitutionally invalid convictions constitute an erroneous record which may not be used collaterally. Since Argersinger held that an uncounseled misdemeanor conviction which results in imprisonment is an unreliable determination of guilt, and therefore constitutionally invalid, it follows that such convictions may not be used collaterally as the basis for the revocation of probation, parole, or a suspended sentence. The revocation should be vacated and reconsideration given without reference to any invalid convictions, (p. 179).
**** Although no court has directly dealt with the revocation of a suspended sentence based on invalid misdemeanor convictions, a similar result should follow since the circumstances are sufficiently analogous to probation and parole revocations. Thus a misdemeanor conviction obtained in violation of the Argersinger rule should be restricted from indirectly resulting in loss of liberty, (p. 180)
Under Argersinger uncounseled misdemeanor convictions of indigents are still constitutionally valid if imprisonment is not imposed. **** (p. 182)
**** Qne approach would place no restriction on the use of convictions not invalidated by Argersinger. The argument may be framed in syllogistic fashion: Uncounseled misdemeanor convictions which do not result in imprisonment are constitutional. Constitutionally obtained convictions may be used collaterally. Therefore, collateral use of uncounseled misdemeanor convictions not resulting in imprisonment is proper. This argument is based on a rigid interpretation of the Court’s holding in Argersinger. Although the major premise of this syllogism is presently accurate, no Supreme Court decision has specifically held that uncounseled misdemeanor convictions which do not result in imprisonment are constitutional. Instead, their constitutionality is upheld only by default — the Argersinger court having refused to consider the issue. Even so, this argument is not without merit, for it accurately, though narrowly, portrays the current status of the law. (p. 183)
There is, however, the Argersinger Court’s concern about the effect of its decision on the administration of justice. Requiring that any misdemeanor conviction must be counseled in order for it to result, directly or indirectly, in loss of liberty effectively extends the right to counsel in all misdemeanor cases. This is exactly what the Court refused to do in Argersinger. The pre-trial problems would be magnified; in each misdemeanor trial the decision whether to appoint counsel would have to be made not only on the basis of whether imprisonment would be an available sentencing alternative, but also on the basis of whether, if convicted and only fined, the conviction would have a potential collateral effect on liberty. Such a predetermination would be an administrative nightmare and would in effect stimulate a general appointment of counsel except for the most minor charges. Thus the apparent desire of the Court to avoid the burden of a broad extension of the right to court-appointed counsel would be severely compromised. (p. 184)

In Cottle v. Wainwright, 477 F. 2d 269 (5 Cir., 1973), the court made a distinction between a conviction without assistance of counsel where a jail sentence was imposed and one where there was no jail sentence. A parole revocation was under consideration there. That court held that a parole could not be revoked on the basis of prior invalid convictions and that, since Cottle’s first misdemeanor conviction without assistance of counsel did not result in his imprisonment, the rule m Argersinger did not apply and this conviction was not tainted and could be considered. On the other hand, the court held that a second such conviction, which did result in a sentence of imprisonment, was constitutionally invalid and could not be considered.

Marston v. Oliver, 485 F. 2d 705 (4 Cir., 1973) involved the possible use of a conviction which resulted in a prison sentence for the revocation of a driver’s license. It was conceded that, had this conviction occurred after Argersinger, it would have been open to constitutional attack. The court was there dealing only with the question of retroactive application of Argersinger to relieve the convicted person of collateral consequences of the conviction on a civil right. The statement that Argersinger would apply to loss of liberty which is either a direct or collateral consequence of the uncounselled conviction is purely dictum and inconsistent with that court’s apparent approval of the decision in Cottle v. Wainwright, supra.

State v. Reagan, 103 Ariz. 187, 440 P. 2d 907 (1968) was decided long before Argersinger. It did not involve the same questions. In Arizona the rule of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1962) had been extended to “serious offenses,” i.e., misdemeanors which the superior court determines to be serious “under the particular circumstances”. The Argersinger court did not extend the Gideon rule so far.

In State v. Kirby, 33 Ohio Misc. 48, 289 N.E. 2d 406 (1972) the court did consider Argersinger. It, however, applied Gideon and Argersinger on the premise that the Ohio statutes involved made earlier misdemeanor convictions “serious offenses”. Even though the Ohio court made no distinction, it should be noted that one of the two previous convictions resulted only in a fine and the other resulted in a six-month workhouse sentence. The Ohio Statute involved made a second conviction a felony. Sec. 3719.50, 3719.99 (N).

I would affirm the judgment in this case.

I am authorized to state that the Chief Justice joins in this dissent.