text:
    Kenneth TYSON v. Paul K. ROBERTS, Circuit Judge
    85-185
    700 S.W.2d 50
    Supreme Court of Arkansas
    Opinion delivered December 9, 1985

      Hani W. Hashem, for petitioner.

      John R. Byrd, for respondent.
   George Rose Smith, Justice.

This is a petition for a writ of mandamus to direct Circuit Judge Paul K. Roberts to set aside an order transferring this litigation to the chancery court and to direct him to assume jurisdiction of the case. The writ must be denied, because mandamus is not the proper remedy in the situation presented to us in this case. Our jurisdiction arises under Rule 29(l)(f).

In August, 1984, Ray McNeice sued the petitioner, Kenneth Tyson, in the Ashley Chancery Court, seeking an accounting. The complaint alleged that McNeice had hired Tyson, a contractor, to construct improvements to McNeice’s home, but Tyson had fraudulently overcharged McNeice for various items of labor and materials. The prayer was that Tyson be compelled to account, and produce supporting documents, for all money spent on the job. Tyson’s answer and counterclaim alleged that the contract price had been $43,252.90, that Tyson had performed the contract with extras, and that McNeice owed Tyson $4,806.61, plus damages for injury to Tyson’s credit standing. Tyson later amended his counterclaim to ask for punitive damages for McNeice’s malicious prosecution of the case, slanderous statements about Tyson’s workmanship, damage to his reputation, and so on.

In March, 1985, Tyson moved that the case be transferred to circuit court, asserting that the accounts were not complicated and that Tyson was entitled to a jury trial of his claim for punitive damages. The chancellor, over McNeice’s objection, granted the motion to transfer. McNeice promptly obtained from the circuit court an order retransferring the case to chancery, with a finding by the circuit judge that the accounts were complicated, that expert testimony by accountants would be required, and that a court of equity could grant complete relief.

At this point Tyson filed his petition in this court for a writ of mandamus to compel the circuit judge to set aside his order and assume jurisdiction of the case. The petition asks alternatively that if we find the issues sufficiently complicated to require an equitable accounting, Tyson’s tort claims should be severed and allowed to proceed in circuit court. Counsel have submitted briefs under Rule 16.

The petition for mandamus must be denied, for it is not the petitioner’s proper remedy. We have repeatedly held that mandamus will not issue to review or control a trial court’s exercise of discretion. Ellis v. Rockefeller, 245 Ark. 53, 431 S.W.2d 848 (1968); Rolfe v. Spybuck Drainage Dist. No. 1, 101 Ark. 29, 140 S.W. 988 (1911). The writ-eannot be used to correct an erroneous exercise of discretion or to compel the trial court to change such a ruling. Pickens v. Circuit Court of Prairie County, 283 Ark. 97, 671 S.W.2d 163 (1984); Baker v. Harrison, 247 Ark. 377, 445 S.W.2d 498 (1969). “We can issue the writ to require a trial judge to hear a case, but we cannot tell him how to decide it.” Massey v. Enfield, 259 Ark. 85, 531 S.W.2d 706 (1976).

A situation similar to the case at bar was considered in Ark. General Utilities Co. v. Smith, 188 Ark. 413, 66 S.W.2d 297 (1933). There the case was filed in circuit court, transferred to chancery, and then retransferred to law. Just as in the case at hand a petition for mandamus was then filed in this court, asking that the chancellor be directed to assume jurisdiction again. We denied the writ, saying:

Either the chancery court or the circuit court may, within its judicial discretion, determine whether it has jurisdiction, and this judicial discretion will not be controlled by mandamus. Of course, if neither the chancery court nor the circuit court would assume jurisdiction, then the writ will be issued to compel either the chancery court or the circuit court to assume jurisdiction.

The situation suggested in that opinion, in which both courts refuse to act, seems to have arisen only once in Arkansas. Burton v. Ward, 218 Ark. 253, 236 S.W.2d 65 (1951). There both trial judges refused to try the case, insisting that the other court had jurisdiction. Separate petitions for mandamus were filed in this court against each judge. We consolidated the two petitions and resolved the impasse by holding that the case should be tried in the chancery court.

In the case at bar an exercise of discretionary judgment is plainly involved in the determination of jurisdiction. This is not a simple action for breach of contract, as Tyson insists. It is indicated that the $43,000 home improvement job involved many different items of expense for materials and labor. Mc-Neice alleges that some charges were fraudulent and should be supported by documentation. Tyson filed a counterclaim, so that the accounts are mutual and interwoven. Whether a jury could sort them out is by no means clear. No matter which court tries the case, the issue of jurisdiction can be preserved for review by appeal, as in Humke v. Taylor, 282 Ark. 94, 666 S.W.2d 394 (1984). Moreover, as Tyson suggests, if the case is tried in chancery, and Tyson prevails, his tort claim might be severed for a later trial in the circuit court. See Spitzer v. Barnhill, 237 Ark. 525, 374 S.W.2d 811 (1964).

We conclude that mandamus is not appropriate, that writ being issued only when the facts are undisputed and no discretionary action is involved.

Writ denied.

Purtle, J., not participating.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Andrew PAUL v. SAFLEY CONSTRUCTION CO.
    85-92
    700 S.W.2d 55
    Supreme Court of Arkansas
    Opinion delivered December 9, 1985

      Kaplan, Brewer & Miller, P.A., by: Silas H. Brewer, Jr., for appellant.

      Laser, Sharp & Mayes, P.A., for appellee.
   Darrell Hickman, Justice.

This is a wrongful death case. Gary Paul was an employee of Central Boring Company, which had a subcontract with Safley Construction Company on a sewer construction project in Mayflower, Arkansas. Paul was killed in August, 1982. He was guiding a pipe that was being lowered under a buried telephone cable. The crane holding the pipe touched or came close to a live power line, electrocuting Paul.

His parents and brothers sued Arkansas Power and Light Company and the prime contractor, Safley Construction Company. AP&L was dismissed at the end of the plaintiffs case. Appellants allege Safley breached its duty under its contract with the city to initiate, maintain, and supervise all safety precautions and programs, and provide necessary safety protection to prevent injury to all employees on the construction project. Safley also had a duty to supervise and be solely responsible for the means, methods, techniques, procedures and sequences at work on the construction project. Appellants contend Safley’s breach of this duty proximately caused the death of Paul. Safley argued that the subcontractor assumed the responsibility for the safety of its own employees. The jury returned a verdict in favor of Safley Construction Company. On appeal two arguments are made. The first relates to this instruction, which was refused by the trial court and reads:

A prime contractor is liable to employees of a subcontractor who are injured as a result of the prime contractor’s negligent failure to perform its contract by which it undertakes to supervise construction and see that safety laws and regulations are complied with, and agrees to maintain safety precautions and practices for the project, including employees of subcontractors.
The fact that a subcontractor also agrees to comply with safety laws and regulations, and to maintain safe work practices, does not absolve the prime contractor of liability.

The trial court found there was no evidence that Safley was guilty of any negligence under the contract’s safety programs that could have caused this accident. The trial court was correct as it observed:

I’m not going to give any instruction, that is, I am going to refuse any instruction offered me along that line. Here’s the thing about it, on the safety program you furnish gloves to your employees, you furnish hard-toed shoes, you furnish hard hats, that’s your safety programs, what you can do to avoid accidents.
You can tell them, but it won’t do any good — don’t run trucks into solid objects at a great speed; don’t shoot yourself; don’t run cranes into power lines; don’t let dynamite explode in your hands, those type things. All the safety programs in the world aren’t going to guarantee this thing won’t happen.

No evidence was offered that anything Safley could have done by way of a safety program could have prevented the negligent act that occurred in this case. So the court was right in denying the instruction.

The trial court is further justified in denying the instruction because it is biased in favor of the appellants’ case. An instruction must be simple, brief, impartial and free from argument. Per Curiam, April 19, 1965; Beaumont v. Robinson, 282 Ark. 181, 668 S.W.2d 514 (1984) (supplemental opinion).

The second argument relates to the trial court’s instructing the jury as to intervening proximate cause. AMI 503. The argument is meritless because it was a question for the jury to decide if the crane operator’s negligence in contacting or coming close to the power lines was an intervening cause. The crane operator, Moore, was one of Central Boring’s employees and was an experienced and competent crane operator. Moore was familiar with the dangers involved; there were warning signs on the truck regarding operation near power lines. AP&L foremen warned the crews on two occasions about operating the crane close to the lines. Gary Paul, deceased, was experienced in the work; he knew of the danger. He was giving signals to Moore for positioning of the crane just prior to the accident. There was sufficient evidence to justify giving this instruction.

This was a question of foreseeability — that is, should Safley have foreseen that an experienced crane operator would negligently operate his crane and injure or kill a fellow employee? The jury was properly instructed.

Affirmed.

Purtle, J., not participating.


author: Steele Hays, Justice.

text:
    WESSELL BROTHERS FOUNDATION DRILLING COMPANY, INC. v. CROSSETT PUBLIC SCHOOL DISTRICT, NO. 52, JOHN SANDERS, INC., and ADVANCE CONSTRUCTION, INC.
    85-148
    701 S.W.2d 99
    Supreme Court of Arkansas
    Opinion delivered December 9, 1985

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellant.

      Griffin, Rainwater & Draper, for appellee/cross-appellant Crossett Public School District, No. 52.

      Friday, Eldredge & Clark, by: Michael G. Smith, for appellee/cross-appellant John Sanders, Inc.
   Steele Hays, Justice.

In 1978 the Crossett Public School District contracted with John Sanders, Inc., an architectural firm, to prepare plans and specifications for the construction of a school building. The contract was awarded to Advance Construetion, Inc. and Advance subcontracted the foundation work to Wessell Brothers Foundation Drilling Company, Inc.

When the building began to show serious structural defects, the district brought suit against Sanders and Advance. Advance then filed a third-party complaint against Wessell and all parties agreed to arbitration. An arbitration agreement was entered into and the issues were submitted to a three member board. Ultimately the arbitration board awarded $850,000 to the district, which it divided among the defendants in proportion to the responsibility it assessed against each: Advance Construction, Inc., $552,500, Wessell Brothers, $255,000, and John Sanders, Inc., $42,500.

After arbitration a dispute arose as to whether the judgment should provide for joint and several liability and while Circuit Judge Paul K. Roberts had that issue under advisement he suffered a heart attack. On December 7, 1984, Chief Justice Webster Hubbell, pursuant to Ark. Stat. Ann. § 22-142, assigned Judge H. A. Taylor to Ashley County to serve in Judge Roberts’s place. But on December 10, before that transfer order was received, the lawyers of Ashley County elected Mr. W. P. Switzer Special Circuit Judge pursuant to Article 7, Section 21 of our Constitution, and on December 28,1984, Special Judge Switzer entered a judgment providing for joint and several liability. Wessell moved to set the judgment aside on the grounds of Judge Taylor’s prior assignment to Ashley County. While that motion was pending Judge Taylor set aside the first judgment and entered a judgment on February 27,1985, identical in all respects to the earlier judgment, the effect being that the district was deprived of ten percent interest on the $850,000 for about sixty days.

Wessell has appealed, raising two points of error: The court erred in entering a judgment against Wessell under the pleadings and, in the alternative, the court erred in entering a joint and several judgment. By cross-appeal Sanders and the district also argue that a joint and several judgment should not have been entered and the district further contends the judgment entered on December 28, 1984 should not have been set aside.

Addressing the first point, Wessell maintains a judgment in favor of the district should not have been entered against Wessell, a third-party defendant, because the school district failed to amend its complaint to state a cause of action against Wessell. It is argued that Advance has a claim for indemnity from Wessell for any amounts it is required to pay to the district but the district has no direct cause of action against Wessell. Wessell relies on this language in the arbitration agreement:

All parties hereby agree to submit to arbitration under the Construction Industry Arbitration Rules of the American Arbitration Association the controversies which exist between them and which controversies are more specifically described in the complaint, answers, third-party complaints, counterclaims, and cross-complaints which are filed in the previously mentioned litigation.

Wessell contends under this provision the issues are to be resolved by the board under the pleadings, thereby precluding any direct liability by Wessell to the district. We disagree.

The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally, thus we will seek to give effect to the intent of the parties as evidenced by the arbitration agreement itself. 5 Am.Jur.2d § 14; and see Prepakt Concrete Co. v. Whitehurst Bros., 261 Ark. 814, 552 S.W.2d 212 (1977). It is generally held that arbitration agreements will not be construed within the strict letter of the agreement but will include subjects within the spirit of the agreement. Doubts and ambiguities of coverage should be resolved in favor of arbitration. 5 Am.Jur.2d § 14; Uniform Laws Annotated, Vol. 7, Uniform Arbitration Act, § 1, Note 53 (and cases cited therein).

We think the intent of the parties is clearly evidenced in the language of the agreement when it states “All parties hereby agree to submit to arbitration . . . the controversies which exist between them and which controversies are more specifically described in the [pleadings].” This statement does not in any way suggest that arbitration is to be strictly controlled by the pleadings, but rather, that the pleadings will further explain the issues involved in the dispute. It would be a strained interpretation and contrary to the intent of the parties entering into arbitration to read the agreement as Wessell urges.

The intent of the parties to submit all controversies which existed between them to arbitration is further evidenced in paragraph twelve of the agreement:

12. The order of proof shall be as follows: Crossett Public School District No. 52 shall first present its claims against all other parties. John Sanders and/or John Sanders, Inc., shall present their defenses to the claims which they have against them and to present any claims which they have against the other parties. Advance Construction shall then present its defenses to the claims made against it and to present any claims which it may have against the other parties. Finally, Wessell Brothers Foundation Drilling Co., Inc., shall present its defenses to the claims made against it and to present any claims which it has against the other parties, (our emphasis)

In view of the above language we believe the parties intended to put before the board all disputes among themselves with respect to the subject matter of the litigation and did not intend to bind themselves to the formalities of the pleadings.

In the alternative, Wessell submits it was error to enter a joint and several judgment and we agree. The decision of the arbitration board in this case is carefully explained. The award sets out the “division of payment” to be made by each defendant and the amount each shall contribute, followed by the findings supporting the board’s award. A paragraph is devoted to each party, detailing the responsibility of each and in what manner performance was inadequate. There is no mention or suggestion of joint liability. Given the thorough manner in which the award was articulated, we believe the absence of any mention of joint liability is not unintended. The agreement has clearly not directed joint liability in this award. See, generally, 49 C.J.S. § 440 Judgments. Should there be any doubt, we are persuaded in any case by the form and language of the award that the intention of the arbitrators was to direct several liability only, and we will resolve any ambiguity in keeping with that intention. Any ambiguity in an award must be settled in the way that will coincide with the apparent intention of the arbitrators. 5 Am.Jur.2d, supra.

Joint and several liability is of a different character and legal significance than independent liability and the finding of joint liability can radically change the results of a damage award. Courts have no reason to assume that an arbitrator will ignore such fundamental principles of law. See Campbell v. Commonwealth of Pa.,_Pa._, 471 A.2d 1331 (1984). This arbitration board was chaired by Mr. Ralph Barnhart, a former professor and dean at the School of Law, University of Arkansas at Fayetteville, and well acquainted with principles of joint liability. Had the board intended the award to be applied jointly, we think it would have expressly stated it in appropriate terms.

The decision of the arbitration board on all questions of law and fact is conclusive. Kirsten v. Spears, 44 Ark. 166 (1884); and see Alexander v. Fletcher, 206 Ark. 906, 175 S.W.2d 196 (1943); Hirt v. Hervey, 118 Ariz. 543, 578 P.2d 624 (1978); Bromley v. Erie Ins. Group, 322 Pa. Super. 542, 469 A.2d 1124 (1983). The court shall confirm an award unless grounds are established to support vacating or modifying the award. Ark. Stat. Ann. § 34-522, § 34-523. None of these grounds was demonstrated to the court, and absent such a showing the court should have entered the judgment as directed in the award.

Turning to the question of which judge had the authority to act, a potential for conflict between Article 7, Section 21 of our Constitution setting out the procedure for the election of special judges, and Ark. Stat. Ann. § 22-142 providing for the temporary assignment of circuit judges by the Chief Justice of the Supreme Court, is apparent.

We have stated in previous holdings that Art. 7, § 21, providing for the election of special judges, and § 22, permitting circuit judges to temporarily hold court for each other, are the modes expressly set out and are exclusive of all other methods of temporarily replacing a circuit judge. We have held that a statute providing a different method is unconstitutional. Burris Adr’r v. Britt, Judge, 281 Ark. 225, 663 S.W.2d 715 (1984); State v. Green, 206 Ark. 361, 175 S.W.2d 575 (1943). We said in Green:

It appears to us that if a regularly elected circuit judge should fail to occupy his office and discharge the duties thereof, his absence would of necessity be occasioned by circumstances which would either constitute a vacancy in the office requiring the Governor to fill the same in accordance with § 1 of Amendment No. 29 or else would constitute a temporary absence on the part of such judge which would require the election of a special judge in accordance with the provisions of § 21 of Article VII of the Constitution. Since the Constitution itself specifically provides the method for filling the office, either permanently or temporarily, as the circumstances require, and thus has covered the entire field, there is an implied limitation or restriction upon the General Assembly which prohibits it from enacting legislation with respect to such matters. . . .

Citing George v. State, 250 Ark. 968, 470 S.W.2d 93 (1971) and State v. Stevenson, 89 Ark. 31, 116 S.W. 202 (1909), the cross-appellees (Wessell and Sanders) argue that the duties of the special judge are confined to those while holding court and the “power to enter judgment” in this case is not one of those duties. It falls instead within the class of powers possessed by a circuit judge on vacation or at chambers.

While Stevenson, supra, does make a distinction between duties of the regular and special judge, the point was made in that case not for the purpose of pointing out the limitations of power of a special judge, but to show the election of a special judge under Art. 7, § 21 was temporary only and such an election did not fill the vacancy of that office. We went on to say that it is undoubtedly true that the chief function of a circuit judge is filled by the election of a special judge. We have additionally held that the purpose of Art. 7, § 21 is to avoid delay in the trial of pending cases which are about to be reached on the docket or which in fact have been reached, and this provision was intended to keep the sessions of the court from failing and to keep the courts in motion by the election of special judges. Titan Oil and Gas v. Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974); State v. George, supra.

There is nothing the cross-appellees point to or we can find that would make this case beyond the powers of a special judge as outlined within § 21 of the Constitution. Cross-appellees are wrong in the assertion that the case was limited to the entry of judgment on the arbitration award. There was disagreement among the parties as to what the arbitration board had directed. Motions and briefs were submitted by the parties and a hearing was held. While the case was under advisement the regular judge became incapacitated and a special judge was elected. This certainly was a “case pending in the circuit court” within the accepted meaning of the phrase, see State v. George, supra; Cruson v. Whitley, 19 Ark. 99 (1857) and Judge Switzer’s action on the case was fulfilling the purpose of the constitutional provision.

Inasmuch as the lawfully elected special judge had already exercised jurisdiction over this pending case, his judgment takes priority over the judgments of a judge assigned at a later date. Judge Switzer’s judgment therefore stands.

The judgment of February 27, 1985 is reversed and the judgment of December 28,1984 is modified to omit the provision for joint and several liability.

Purtle, J., not participating.

       Procedurally this case is identical to Burris v. Britt in that it is a direct, rather than a collateral, attack on the judgment. See Pope v. Pope, 239 Ark. 352, 389 S.W.2d 425 (1965).


author: David Newbern, Justice.

text:
    ROBERSON ENTERPRISES, INC. and ROPPOLO PETROLEUM COMPANY v. MILLER LAND AND LUMBER COMPANY
    85-149
    700 S.W.2d 57
    Supreme Court of Arkansas
    Opinion delivered December 9, 1985
    [Rehearing denied January 13, 1986.]

      Smith, Stroud, McClerkin, Dunn & Nutter, by: Hayes C. McClerkin and R. Bruce Lorenzen, for appellant.

      Williams & Kemp, by: Karlton H. Kemp, Jr., for appellee.

       Purtle, J., not participating.

   David Newbern, Justice.

The appellee sought an order partially cancelling three oil and gas leases between it, as lessor, and the appellants, as lessees. The basis of the complaint was breach of alleged implied covenants of reasonable development of the mineral interests on portions of each of the leased lands. The chancellor found the implied covenants to exist and that there had thus far been no breach by the appellants. However, the chancellor ordered the appellants to execute a release on February 5, 1986, from the leases of the lands in question unless they had drilled a producing well or had begun continuous drilling operations on those lands.

The issues on appeal are (1) whether by finding the existence of the implied covenants in the leases the chancellor improperly “reformed the contracts” and (2) whether the chancellor, assuming the implied covenants were properly found, had the authority to enter a conditional order of partial cancellation of the leases having found no breach of the implied covenants at the time his order was entered.

We hold it was not error to find the implied covenants but that it was error to enter the conditional cancellation, and thus we modify the decree to omit the conditional cancellation order and affirm.

1. Reformation

While the appellants couch this allegation of error in terms of “reformation” which they contend was erroneous because there was no finding of fraud, mistake or trickery, we must conclude their real complaint is that it was error to hold there were implied covenants of reasonable development in the leases. A reformation occurs when the court determines an instrument does not reflect the terms intended by the parties to it and then revises the terms written in the instrument to reflect the intent of the parties. Kohn v. Pearson, 282 Ark. 418, 670 S.W.2d 795 (1984). The chancellor did not purport to revise the leases to incorporate or revise a negotiated term. Rather he found there were implied covenants requiring reasonable development of the mineral interests on the leased property. There is plenty of authority for finding such an implied covenant in any oil and gas lease in which royalties are to be the lessor’s principal compensation. Byrd v. Bradham, 280 Ark. 11, 655 S.W.2d 366 (1983); Smart v. Crow, 220 Ark. 141, 246 S.W.2d 432 (1952). The appellants do not assert that the royalty provisions were not the principal compensation contemplated by these leases. It was thus proper for the chancellor to find the existence of the implied covenants to develop the mineral interests.

2. Conditional Cancellation

Cancellation of an oil and gas lease is an appropriate remedy when breach of the implied covenant of reasonable development is shown. Nolan v. Thomas, 228 Ark. 572, 309 S.W.2d 727 (1958). When this equitable remedy is sought on the basis that the remedy at law is inadequate, however, the remedy of conditional cancellation is preferred. H. Williams and C. Meyers, Oil and Gas Law, § 834, pp. 247-248 (1984). The first case in which this court dealt with conditional cancellation was Poindexter v. Lion Oil Refining Co., 205 Ark. 978, 167 S.W.2d 492 (1943), in which we reversed the chancellor’s refusal to cancel but ordered a six-month period to allow development. There was no question that a breach justifying immediate cancellation had occurred, but we allowed the six-month period because it was a case of first impression on the implied covenant of reasonable development, and fairness to the lessee required the delay. Then in Smart v. Crow, supra, a lessor sought cancellation of an oil and gas lease on four ten-acre tracts. The chancellor found there had been reasonable development on two of the tracts and gave the lessees sixty days to begin drilling on the third tract and twenty days after drilling commenced on the third tract to drill on the fourth tract. On appeal the lessor argued that there should have been immediate cancellation. The lessee did not appeal the conditional cancellation. We held it was reasonable for the chancellor to decline immediate cancellation and said “. . .it is not inequitable to allow them the time prescribed by the [c]hancellor to commence wells on the two ten acre tracts. . . .” In Arkansas Oil and Gas, Inc. v. Diamond Shamrock Corporation, 281 Ark. 207, 662 S.W.2d 824 (1984), the lessor appealed the chancellor’s refusal to order immediate cancellation, and we affirmed. We recited that the chancellor found the lessee was not in default, but we then concluded it was not error to enter a conditional cancellation as opposed to an immediate cancellation. No issue was raised by the lessee contesting the conditional cancellation, so once again we were not asked to decide whether a lessee not yet in default could be ordered to drill or forfeit within a stated period.

In none of those cases were we directly confronted with the question whether the chancellor must find a breach of the implied covenant for reasonable development as a predicate for conditional cancellation. Cases from other jurisdictions demonstrate that conditional cancellation should be ordered when a breach of the implied covenant of reasonable development is found. See Amerada Petroleum Co. v. Doering, 93 F.2d 540 (5th Cir. 1937); Slaughter v. Cities Service Oil Co., 660 S.W.2d 860 (Tex. Civ. App. 1983); Rush v. King Oil Co., 220 Kan. 616, 556 P.2d 431 (1976); Vickers v. Vining, 452 P.2d 798 (Okla. 1969). We have found no case in which a conditional cancellation has been ordered absent the finding of a present breach of the implied covenant of reasonable development where the issue on appeal was the propriety of the conditional cancellation.

A good reason for ordering conditional rather than absolute cancellation upon finding a breach of the covenant is that the question of reasonableness of development is a difficult one, generally approached ad hoc. H. Williams and C. Meyers, Oil and Gas Law, § 832.2 (1984). Equity need not give all or nothing relief and may impose conditions with respect to the remedy awarded. State of Arkansas v. Cate, 236 Ark. 836, 371 S.W.2d 541 (1963). While it may be said that implicit in the chancellor’s order of conditional cancellation is a finding that the appellants will have breached the implied covenants of reasonable development if they do not commence drilling before February 5,1986, neither we nor the chancellor could know what conditions will prevail on that date. The decree presumably speculates that all conditions will be the same as on the date the decree was rendered. While this sort of decree might be a salutary time saving device if the speculation proves correct, we are unwilling to place on these appellants the burden of coming back to the court to demonstrate they are not in breach of the implied covenants next year. Until they are found to have done something wrong, no remedy should be imposed.

Modified and affirmed.

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Early Hester JOHNSON, Jr. v. STATE of Arkansas
    CR 85-137
    700 S.W.2d 786
    Supreme Court of Arkansas
    Opinion delivered December 16, 1985

      Henry & Moony, by: John R. Henry, for appellant.

      Steve Clark, Att’y Gen., by: Charles R. Lucas, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Early Hester Johnson, Jr., was convicted by a jury of aggravated robbery of J.T.’s Service Station in Earle, Arkansas, and was sentenced as an habitual offender to 40 years imprisonment. It is from that verdict and sentence that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(b).

The sole issue raised on appeal is that the trial court erred in failing to grant a continuance. On the day of the trial, during a hearing in chambers, the appellant asked for a continuance based on two grounds. He argued that the jury had seen him in leg irons, and that two of his witnesses for which subpoenaes were issued were not present for the trial. Only the second ground is pursued in this appeal.

The case was originally set for trial on November 7, 1984. Due to a crowded trial docket, it was continued until March 29, 1985. On March 29, the trial was postponed at the request of the appellant. Trial was subsequently held on April 2, 1985. The appellant maintains that one or two days prior to the March 29 trial date, his then-attorney was informed there was evidence that two of appellant’s witnesses: David Lewis and Charles White, who were in custody at the Department of Correction and were subject to an outstanding subpoena, were also in custody on the day the offense was committed. According to the appellant, a discussion was held between his former counsel and the prosecutor and they reached an understanding that a hearing would be held by the court to determine if the witnesses would be brought from prison for the trial. A hearing was not held and the witnesses did not appear. Appellant complains he did not have an adequate opportunity for a hearing regarding the production of the witnesses.

In denying the motion, the trial court found there were no pleadings, petitions, or motions filed for the production of the witnesses. He further noted that this was the third time the appellant had been brought from the penitentiary for the trial and that, since there was no showing that the inmates the appellant subpoenaed as witnesses were material witnesses, the motion would be denied.

Motions for continuance are addressed to the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion amounting to a denial of justice. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983), rehearing denied.

The trial court’s' ruling was correct. There is a statutory procedure for obtaining the presence of an incarcerated witness. Arkansas Stat. Ann. § 43-2022 (Repl. 1977) provides that a circuit court may:

upon presentation of a petition duly verified and for good cause, by. . . interested defense counsel, have jurisdiction and authority to provide by proper order the presence in court and for the trial and as a witness, any person incarcerated . . . whose testimony would be material

Such a petition was never filed and no showing of materiality was made. In Walker v. State, 280 Ark. 17, 655 S.W.2d 370 (1983), the trial court refused a continuance where a witness was in prison and was not present for the trial. We upheld the judge’s action, in part because no court order was ever obtained pursuant to § 43-2022.

Furthermore, Ark. Stat. Ann. § 27-1403 (Repl. 1979) establishes the procedure for postponing a trial because of the absence of evidence or of a witness. Under § 27-1403, such a motion to postpone:

shall, if required by the opposite party, be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it; and if it be for an absent witness, the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, that the affiant himself believes them to be true, and that the witness is not absent by the consent, connivance, or procurement of the party asking the postponement.

Here, no such affidavit was offered.

In Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977), we discussed the factors to be considered in ruling on a motion for continuance. Those factors include “the diligence of the movant, the probable effect of the testimony at the trial, the likelihood of procuring the attendance of the witness in the event of a postponement,” and the filing of a § 27-1403 affidavit. In Kelley we stated, that “[t]he denial of a motion which is not in substantial compliance with the statute is not an abuse of discretion.”

Accordingly, the judgment is affirmed.

Purtle, J., not participating.


author: George Rose Smith, Justice.

text:
    Earl Lee BELL, a/k/a Earl Lee ANDERSON v. STATE of Arkansas
    CR 85-146
    700 S.W.2d 788
    Supreme Court of Arkansas
    Opinion delivered December 16, 1985

      Phil Barton, for appellant.

      Steve Clark, Att’y Gen., by: Jerome T. Kearney, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

On July 6, 1978, the circuit court entered a judgment onr-a jury verdict, committing the appellant to life imprisonment for rape. No appeal was taken, nor was a petition for post-cónviction relief filed within the three years allowed by Criminal Procedure Rule 37.2(c). In June, 1983, Bell filed a petition for a writ of error coram nobis, which was denied after a hearing at which Bell testified that after the trial he told his attorney, both over the telephone and in a letter, that he wanted to discuss the matter of an appeal, but the attorney did not communicate with him. This appeal from the trial court’s denial of relief comes to this court under Rule 29(1 )(b) and (e).

Whatever remedy Bell had for his attorney’s failure to appeal could have been asserted under Rule 37, but the three-year limitation was allowed to lapse. The writ of error coram nobis is available only when there existed some fact that would have prevented the rendition of judgment had the fact been known to the trial court. Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975). No such situation is presented in the present case; so the trial court properly denied the writ.

Affirmed.

Purtle, J., not participating.


author: Steele Hays, Justice. Robert H. Dudley, Justice, concurring.

text:
    Dr. Rosemary BRANDT v. ST. VINCENT INFIRMARY
    85-142
    701 S.W.2d 103
    Supreme Court of Arkansas
    Opinion delivered December 16, 1985
    [Rehearing denied January 21, 1986.]

      Kenneth C. Coffelt and Dale Price, for appellant.

      House, Wallace, Nelson & Jewell, P.A., by: Janice Wegener and Thomas B. Staley, for appellee.

       Purtle, J., not participating.

   Steele Hays, Justice.

In this case of first impression we are asked to decide whether a private hospital has the right to set its own policies regarding medical treatment, against an assertion by one of its staff physicians that those policies are arbitrary.

Appellant invoked the jurisdiction of this court pursuant to Rule 29(1) (a), alleging her constitutional rights were violated by certain hospital restrictions and the Court of Appeals certified the appeal to us on the basis of Rule 29 (4) (b).

Appellant, Dr. Rosemary Brandt, is a licensed physician on the medical staff of appellee, St. Vincent Infirmary, specializing in psychiatry. She brought this suit in chancery court claiming the appellee had unreasonably, capriciously and arbitrarily restricted her right to prescribe and administer megadose vitamin therapy and candida antigens. She asked that the hospital be enjoined from such interference. Upon motions by appellee for dismissal under ARCP 12(b)(6) and for summary judgment under ARCP Rule 56, the Chancellor summarily dismissed the case, finding that appellant failed to allege facts upon which relief could be granted and that no justiciable controversy existed.

We agree with the Chancellor with respect to the Rule 12(b)(6) motion, that no cause of action was alleged upon which relief could be granted. That being so, there was no need to consider whether there were issues of material fact relevant to Rule 56. If a complaint fails to allege a cause of action in the first instance, the absence of issues of fact are of no concern. Dismissal under Rule 12(b)(6) should be granted when taking all the facts alleged in the complaint as true, the complainant is not entitled to the relief sought. See McAllister v. Forrest City Street Improvement Dist. No. 11, 217 Ark. 372, 626 S.W.2d 194 (1981). We conclude the Chancellor correctly held that no cause of action was stated.

Appellant was licensed to practice medicine in Arkansas in 1957, and began specializing in psychiatry in 1966. In 1971 she was certified by the American Board of Psychiatry and Neurology. She has been on the medical staif of appellee hospital since 1978 and has treated patients with allergic modalities and nutritional therapy. Treatments have included the use of mega-vitamins and candida vaccines, as well as the more traditional methods of psychotherapy. Sometime prior to October 16,1984, when appellant filed this suit, she was instructed by appellee’s Psychiatry Controls Committee to refrain from use of the mega-vitamins and candida vaccines except to patients with a diagnosed deficiency state or unless administered on an experimental basis. She contends these restrictions are imposed discriminately by the hospital and by its Psychiatry Controls Committee, which determined that the treatments were without sufficient scientific validation to justify their use other than on an experimental basis. Appellant declined to submit to an experimental protocol, claiming the treatments are not experimental.

Appellant concedes that SVI is a private hospital, which simplifies the issue. Public hospitals are prohibited from acting arbitrarily and capriciously under the Equal Protection Clause and Due Process Clause of the 14th Amendment to the United States Constitution, and under article 2, sections 2 and 3 of the Arkansas Constitution. See Ware v. Benedict, 225 Ark. 185, 280 S.W.2d 234 (1955). Anno: Physician, Surgeon-Hospital Exclusion, 37 ALR3d 645, 669 (1971). And it is generally held that private hospitals are not subject to the same standards as public hospitals, 37 ALR3d 645, 649 (1971).

A private hospital however, will be considered public and subject to judicial review under some circumstances: 1) when the relationship or nexus between the state and the institution is symbiotic in character and the state has so far insinuated itself into a position of interdependence that it must be recognized as a joint participant in the challenged activity — that the nexus is sufficiently close so that the action of the institution may be fairly treated as that of the state itself, Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); and 2) when the institution is dedicated to a public purpose, Greisman v. Newcomb Hospital, 40 N.J. 389, 192 A.2d 817 (1963) or may exercise some power delegated to it by the state which is traditionally reserved exclusively to the state. Jackson, supra; Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978). For a discussion of the basis of state action in such cases, see generally Bello v. South Shore Hospital, 338 Mass. 770, 429 N.E. 2d 1011 (1981); Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321 (1982) (Hoffman, J., concurring). In both instances, the courts may review the hospital rule or policy looking for its reasonableness, as though reviewing actions or policies of a public hospital.

The Eighth Circuit Court of Appeals considered the nexus argument in a recent Arkansas case, Lubin v. Crittenden Hospital Assn., 713 F.2d 414 (1983). Dr. Lubin was placed on probation for misconduct as a staff member at the Crittenden Memorial Hospital, a private, nonprofit corporation. He argued the disciplinary action constituted state action and was in violation of his due process rights under the federal constitution, and rights defined under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). Rejecting Lubin’s argument, the court stated:

In order for the Hospital’s discipline of Dr. Lubin to be classified as state action there must be a sufficiently close nexus between the challenged action of the Hospital and the state’s regulation so that the action of the former may be fairly treated as that of the state itself. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453-54, 42 L.Ed.2d All (1974). “The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982) (emphasis in original).
This court applied the nexus test in Briscoe v. Bock, supra, 540 F.2d 393, a case in which a physician was dismissed by a private, non-profit, tax-exempt hospital. Id. at 394. The hospital in question in Briscoe was subject to extensive state regulation and received substantial federal funding. Id. We held that there was “no such nexus between the state’s relationship to the Hospital’s operation and the dismissal of the plaintiff as to justify attribution of the challenged action of the Hospital to the state.” Id. at 396.

The court went on to note the only distinction between the Lubin and Briscoe cases lay in the fact that the county owned the hospital in Lubin, which was not sufficient to establish state action, thus the state was not controlling the activity from which Lubin’s complaint arose.

The Lubin court held that unless the state or subdivision is directly responsible or indirectly connected with the action of which the plaintiff complains, the action will not be attributed to the state. We note that Crittenden Memorial Hospital received aid under the Hill-Burton Act, as well as from Medicare and Medicaid programs, and was regulated as a health care facility. Notwithstanding the hospital’s participation in these programs, it was not considered to fall within the public function category.

A majority of federal circuits which have addressed the question have held that a private hospital’s actions are not state action and thus not governed by the 14th Amendment, even though the cases may involve hospitals receiving Hill-Burton funding and Medicare or Medicaid payments, tax exempt status, and which were licensed and regulated by the state. See Hodge v. Paoli Memorial Hosp., 576 F.2d 563 (3d Cir. 1978); Madry v. Sorel, 558 F.2d 303 (5th Cir. 1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978); Schlein v. Milford Hospital, Inc., 561 F.2d 427 (2d Cir. 1977); Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976); Watkins v. Mercy Medical Center, 520 F.2d 894 (9th Cir. 1975); Jackson v. Norton-Children’s Hospitals, Inc., 487 F.2d 502 (6th Cir. 1973), cert. denied, 416 U.S. 1000 (1974); Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973); Doe v. Bellin Memorial Hospital, 479 F.2d 757 (7th Cir. 1973).

In that light, it is difficult to conceive of a situation where a private hospital will be governed by a reasonableness standard unless the challenged regulation or action is prompted by the state. Here, the appellant offered nothing by way of argument on appeal or in pleadings or affidavits below that the state or any subdivision was in any way responsible for the action she challenges. She does not even meet a threshold requirement of stating or claiming there was state involvement with SVI in any manner whatsoever. Under these circumstances we find no basis for state action and hence no judicial review on the grounds of any nexus between SVI and the state.

The alternative basis for finding judicial review appropriate is one grounded on policy and finding the hospital in a public function or dedicated to a public purpose. The leading case in this area is Greisman v. Newcomb Hosp., supra. Our research indicates that since that opinion in 1963, only a minority of courts have been persuaded to follow Greisman in its reasoning. To that effect, see Bello v. South Shore Hospital, supra; Daniels, supra; Kelly v. St. Vincent Hosp., 102 N.M. 201, 692 P.2d 1350 (1984); Hoffman v. Garden Hospital, 115 Mich. App. 773, 321 N.W. 2d 810 (1981); Kiracofe v. Reid Memorial Hospital, 461 N.E.2d 1134 (Ind. App. 1984) (Ratliff, J., concurring).

We also decline to follow Greisman on the allegations presented here. All hospitals cater to the health needs of the community, an essential public function, and therefore their policies and practices are of particular concern to the public. Nevertheless, there are sufficient regulations now in effect designed to protect the public in the operation of health care facilities in the state. We see no compelling reason to conclude that a private hospital which is following appropriate state regulations must also be subject to judicial scrutiny as to the reasonableness standard of public hospitals in order to preserve the public interest. Its own medical staff can guarantee adherence to reasonableness more capably than the courts. We think it unnecessary to strip the private hospital of its right to adopt policies of its own choosing simply because the hospital serves an overall public function. And see Bello, supra.

Appellant insists if we affirm the Chancellor we will be making a public declaration that a physician does not have the right to use those methods of treatment he or she considers beneficial to patients. But that assertion distorts the issue. Nothing in this opinion denies to the appellant the right to use any lawful treatment she deems appropriate, only that she may not use the facilities of the appellee to administer those treatments except in accordance with conditions prescribed by the governing body of that institution.

In Branch v. Hempstead County Memorial Hospital, 539 F. Supp. 908 (W.D. Ark. 1983) the issue of a physician’s rights within a public hospital was addressed. In Branch, the court merely required the hospital to afford minimal due process procedures — notice and a hearing. It recognized the principle that great deference should be accorded the decisions of the hospital governing body. 539 F. Supp., at 917-918. And see Sosg v. Bd. of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir. 1971).

In light of that deference accorded even public hospital boards, we believe the Chancellor’s order dismissing the complaint should be affirmed.

Affirmed.

Purtle, J., not participating.

Hickman, J., and Dudley, J., concurring.

Robert H. Dudley, Justice, concurring.

I concur in affirming the decision of the trial court, but do not agree with the reasoning expressed by the majority in reaching, that result.

The majority opinion sets forth the rule that the managing authority of a private hospital can unreasonably and arbitrarily dictate how medicine is to be practiced by a physician or surgeon in that hospital. The better rule would be to allow the managing authority to dictate how a physician or surgeon is to practice medicine only after a reasonable exercise of judgment.

The various interests are not necessarily in opposition. Hospital authorities must be given great managerial discretion in order to elevate hospital standards and provide higher quality medical care. The physician, by being on the hospital staff, carries the imprimatur of the hospital. Understandably, hospital authorities must have some control over the physicians on their staff. At the same time, physicians must be allowed to practice medicine to the best of their ability and should never be unreasonably and arbitrarily restrained from so doing. Physicians and hospitals hold their powers relating to the practice of medicine in trust for the public. The majority undercuts that trust since, in compliance with their opinion, Courts of this State in the future must decline to intervene on behalf of a physician and the public when the managing authority of a private hospital arbitrarily, unreasonably and without medical basis dictates that some particular medical practice must be followed. It is no answer to state, as the majority does, that the doctor can go elsewhere if he does not want to follow the dictates of the hospital authority. “It is common knowledge that a physician or surgeon who is not permitted to practice his profession in a hospital is as a practical matter denied the right to fully practice his profession . . . [because] much of what a physician or surgeon must do can only be performed in a hospital.” Wyatt v. Tahoe Forest Hospital District, 174 Col. App.2d 709, 345 P.2d 93 (1959).

The majority bases its conclusion on the distinction between public and private hospitals. That distinction, however, is rapidly changing. The better view of hospitals, such as the one before us, is that they are quasi-public institutions. The concept is explained in Silver, M.D. v. Castle Memorial Hospital, 53 Hawaii 475, 497 P.2d, 564, 569 (1972):

At this point it is appropriate that we note the distinction that has been drawn in characterizing a hospital as a public or private institution. It has been recognized that the generally accepted view is that “a public hospital is an instrumentality of the state, founded and owned in the public interest, supported by public funds, and governed by those deriving their authority from the state. A private hospital is founded and maintained by private persons or a corporation, a state or municipality having no voice in the management or control of its property or the formation of rules for its government.” Woodard v. Porter Hospital, Inc., 125 Vt. 419, 422, 217 A.2d 37, 39 (1966). The principal distinguishing feature of a hospital that is characterized as being private is that it as an entity has the power to manage its own affairs and is not subject to the direct control of a governmental agency, [citations omitted] Such a private identity is usually evidenced by the fact that under the hospital’s charter or corporate powers granted, it has the right to elect its own board of officers and directors. It is this board in whom is placed, either expressly or impliedly, the discretionary power of granting staff privileges.
It is evident that recently some courts have recognized another hospital classification falling between that of public and private. Such a status can be termed “quasi public” as distinguished from a hospital that is truly private. E.g., Sussman v. Overlook Hospital Association, 92 N.J. Super. 163, 168, 222 A.2d 530, 533 (1966), aff'd 95 N.J. Super. 418, 231 A.2d 389 (1967). The “quasi public” status is achieved if what would otherwise be a truly private hospital was constructed with public funds, is presently receiving public benefits or has been sufficiently incorporated into a governmental plan for providing hospital facilities to the public. It is not surprising that courts would be more readily willing to grant judicial review of a private hospital’s administrative decision if it could be shown that the hospital in question was not a truly private institution. However, if the proposition that any hospital occupies a fiduciary trust relationship between itself, its staff and the public it seeks to serve is accepted, then the rationale for any distinction between public, “quasi public” and truly private breaks down and becomes meaningless, especially if the hospital’s patients are considered to be of primary concern.
In holding that the actions of appellee hospital in this case are subject to judicial review we do not mean to characterize appellee as anything other than a private hospital. In relation to this point we are in concurrence with the reasoning that “a private nonprofit hospital, which receives part of its funds from public sources and through public solicitation, which receives tax benefits because of its nonprofit and nonprivate aspects and which constitutes a virtual monopoly in the area in which it functioned, is a ‘private hospital’ in the sense that it is nongovernmental, but that it is in no position to claim immunity from public supervision and control because of its private nature. The power of the staff of such a hospital to pass on staff membership applications is a fiduciary power which must be exercised reasonably and for the public good.” Davidson v. Youngstown Hospital Association, 19 Ohio App. 2d 246, 250, 250 N.E.2d 892, 895 (1969).

In the case at bar the record does not disclose whether the hospital actually received Hill-Burton funds, but federal grants for construction costs were made to both public and private hospitals. 42 U.S.C. § 291 (1982). It is common knowledge that Medicare and Medicaid pay the hospital expenses of many patients in both public and private hospitals. St. Vincent’s is licensed by the State and sufficiently incorporated into a governmental plan that it and the other established hospitals have a virtual monopoly on hospital rooms in the area. In fact, this very hospital prevented a competing 150 bed hospital from opening. Statewide Health Coordinating Council, Baptist Medical System, St. Vincent Infirmary, et al. v. General Hospitals of Humana, Inc., 280 Ark. 443, 660 S.W.2d 906 (1983). It is basically unfair for the state and federal governments to give this hospital a monopolistic power, and then for this court to rule that the hospital is a totally private corporation.

A fair weighing of the various interests requires that the hospital in this case be termed a quasi-public- hospital and, consequently, it must afford physicians or surgeons a fair consideration, or due process, before dictating how they shall practice medicine. The hospital in this case did in fact afford the physician a fair consideration. Thus, I would affirm the case on the basis of a summary judgment instead of on the basis that an arbitrary and unreasonable dictation of the method of medical practice is not actionable.


text:
    Willie Gene TREADWAY v. STATE of Arkansas
    CR 85-119
    700 S.W.2d 364
    Supreme Court of Arkansas
    Opinion delivered December 16, 1985

      William R. Simpson, Jr., Public Defender, Arthur L. Allen, Deputy Public Defender, by: Carolyn P. Baker, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant, Willie Treadway, was charged with aggravated robbery and theft of property. The first trial ended in a hung jury. In the second trial the jury returned a verdict of guilty and appellant was sentenced under the habitual offender act to consecutive terms of thirty years and ten years in the Department of Correction. On appeal we affirm.

On August 5,1984, Stinger Sam’s Auto Parts on Roosevelt Road in Little Rock was robbed by a lone gunman. Willie Treadway was later identified as the robber in a lineup and at the trial by the store manager and a customer. A clerk who saw the gunman briefly as he came from the back of the store made only a tentative identification of Treadway in a lineup and was not asked to identify him at the trial. The manager and the customer were positive Willie Treadway was the man they saw.

Appellant’s first two points of error concern the identity of an informant who called the police several times in response to a newspaper article concerning the robbery. The informant indicated he had seen the man who did it immediately after the robbery, whom he named only as “Willie,” and said the man claimed to have committed the robbery and had shown the informant the money. In the later conversations the informant said the last name was “possibly” Tidwell and he provided a license number, JNN 565, which eventually led to the arrest of Willie Treadway.

Appellant argues that the identity of the informant should have been disclosed. We disagree. Rule 509(a) of the Uniform Rules of Evidence gives the prosecution the privilege of refusing to disclose the identity of an informant except where the informant is a witness to the crime or participates in it. Rovario v. United States, 353 U.S. 53 (1957 James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983). There is no merit to the argument that because the informant saw the money taken and was in contact with the robber soon after the crime an inference arises that he was a participant. There was no proof that more than one individual was involved and the fact that the informant may have gotten his information shortly after the event is not sufficient to strip away the protection the law wisely gives to informants not otherwise connected with the crime.

Appellant also submits he should have been permitted to call Officer Milton Porterfield to present information relevant to the identity of the gunman. Counsel for the appellant told the trial court Porterfield would testify there was a black male named Willie Tidwell who matched the description of the robber. When the trial judge offered to issue a subpoena to bring Willie Tidwell in so the witnesses could see whether he was the robber counsel declined, saying “No, Your Honor, all I am trying to do is show the information the police got that they acted on was suspect.”

Doubtless the similarity of names created some confusion, but it is a fair assumption that the “Willie” the informant had in mind was Willie Treadway, rather than Willie Tidwell, since the license number he supplied matched up with Willie Treadway. Be that as it may, the ultimate issue is not whether the police acted on information that was “suspect” (they often pursue false leads) but whether in the end they have charged the right person, and appellant wanted to show not that the wrong man was charged, only that during the investigative stage another name was mentioned, avoiding at the same time the risk of proving the alternative — that it was in fact Willie Treadway, not Willie Tidwell, who was seen in Stinger Sam’s that day. Counsel sought to capitalize on the confusion of names, while stopping short of clarifying it. We don’t suggest that that is not the proper role of defense counsel under our adversary system, but that is not the point here. The point is the trial judge saw that attempt to produce half a loaf as creating a trial within a trial. He ruled out the proffer as collateral and irrelevant to the issues being tried and we must decide whether that decision warrants yet a third trial.

We have said in a host of cases the trial courts must have considerable discretion in settling the innumerable evidentiary disputes where relevance is the heart of the matter and, hence, such rulings are reversed only where the trial judge abuses that discretion. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984), Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 993 (1983). We find no abuse of discretion in this instance.

Next, appellant argues that the reliability of the in-court identification is so lacking the trial court erred in permitting the store manager and customer to identify Willie Treadway as the gunman. The factors to be considered in determining whether in-court identification is reliable are listed in Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). They include the opportunity of the witness to see and observe the perpetrator at the crime, the witness’s attention, the accuracy of the prior description given by the witness, the level of certainty demonstrated by the witness at the confrontation, the length of time between the crime and the confrontation, and other relevant circumstances.

Here the crime was committed in a lighted building during daylight hours, and the lineup was held three weeks later. The robber kept the lower part of his face concealed with a hand-towel, but the rest of his face and head were unprotected. We find no proof that the description given by the two witnesses after the crime was inconsistent with the description of the appellant. Both witnesses were positive and certain of their identification. We think the issue was one of weight rather than admissibility and we cannot say the trial court should have suppressed the identifications in the courtroom.

Finally, appellant argues that there is a lack of substantial evidence to support the conviction. That argument must fail because of the testimony of the two witnesses to the crime itself, who said appellant was the man who committed the robbery. Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985).

Affirmed.

Purtle, J., not participating.


text:
    Jerry ATKINS v. STATE of Arkansas
    CR 85-164
    701 S.W.2d 109
    Supreme Court of Arkansas
    Opinion delivered December 16, 1985

      Mark W. Corley, for appellant.

      Steve Clark, Att’y Gen., by: Jerome T. Kearney, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is an appeal from denial of a petition to vacate or modify a ten-year prison sentence for burglary and to vacate a four-year sentence for failure to appear. The appellant pleaded guilty to both offenses. The petition to the trial court was submitted pursuant to Ark. R. Crim. P. 37. The appellant argues ineffective assistance of counsel and that his guilty pleas were not made intelligently or voluntarily.. He also contends he was sentenced under the Habitual Criminal Act, Ark. Stat. Ann. §§ 43-2328 through 43-2330 (Repl. 1977), without having entered a plea and with no “determination of guilty.” We hold that the plea of guilty to the burglary charge must be set aside, and the appellant must be given an opportunity to plead over. However, we affirm the conviction and sentence with respect to the charge of failure to appear. We thus affirm in part, reverse in part, and remand the case to the circuit court.

The appellant, Jerry Atkins, was charged with burglary. An “affidavit of probable cause” by the Cave Springs chief of police stated Atkins was found at 1:25 a.m. inside a business establishment with a hammer in his hand. The “knob” on the safe in the business establishment had been knocked off. At his arraignment Atkins pleaded not guilty. He later returned before the court with his attorney, Kevin J. Pawlik, and changed his plea to guilty.

At the change of plea hearing, Atkins’ attorney in colloquy with the court said his “understanding” was that Atkins would plead guilty to burglary but that sentencing would be delayed forty-five days and then the matter of application of the habitual criminal statute would be considered by the court. The deputy prosecutor said that was his “understanding” as well. The state now concedes there was more to the agreement. The state’s brief says that in addition Atkins was to assist the police in a drug investigation. If his help yielded useful information, the state was to “make a recommendation to the judge for sentencing to prison and to drop the habitual criminal allegation.” Atkins contends the state had agreed to recommend a sentence of five years if he succeeded in helping with the drug investigation. He contends he was prevented from helping in the investigation by a combination of factors. First, his bail bondsman improperly had him jailed for a short time without a court order because the bondsman thought Atkins was about to flee. Second, he contends his counsel, Mr. Pawlik, thereafter told him, in effect, to flee and he did so. The latter not only, he says, prevented him from helping in the investigation, but caused him to be charged with and convicted of failure to appear at the end of the agreed upon period between acceptance of his plea and sentencing.

When he did ultimately appear before the court for sentencing, Atkins was no longer represented by Pawlik. He contends the public defender who then was his counsel failed to point out to the court that he should have been allowed to withdraw his guilty plea because of its involuntariness. He also argues the public defender was ineffective because he did not call witnesses who could have substantiated Atkins’ testimony that his former attorney had advised him to flee.

1. Ineffective Assistance of Counsel

After accepting Atkins’ plea of guilty to the charge of burglary, the judge left no doubt that Atkins should appear for sentencing on October 29, 1982. Even if Atkins had proven conclusively that he was advised by his lawyer not to appear, it is our opinion his failure to appear, in violation of Ark. Stat. Ann. § 41-2820 (Repl. 1977), would not have been excused. He is arguing he committed this crime because his lawyer told him to, and thus his conviction should be vacated because his lawyer was ineffective.

If Atkins’ lawyer told him to flee, that advice was clearly not a part of the representation of Atkins with respect to the offense of failure to appear. Thus, Atkins cannot be relieved of that conviction even if it is proven Pawlik told him to flee. The public defender thus was not ineffective in failing to put on witnesses to testify that Pawlik told Atkins to flee.

As we are setting aside the guilty plea to burglary on other grounds, we need not address Atkins’ allegations of ineffectiveness of counsel as to that charge.

2. Involuntariness of Guilty Pleas

When Atkins came before the court to change his plea from not guilty to guilty of burglary, the judge engaged counsel in the colloquy noted above with respect to the agreement. He then addressed Atkins as follows:

THE COURT: Y ou understand, of course, that you have to make your own decision as to whether you enter a plea of guilty to Burglary or not? You can follow Mr. Pawlik’s advice or you don’t have to, depending on what you feel is in your best interests, but he can defend you in court and he can advise you and you’re entitled to accept his advice, but it is still your decision. Do you understand that?
MR. ATKINS: Yes, Sir.
THE COURT: Are you offering a plea of guilty to this charge of your own free will?
MR. ATKINS: Yes, Sir, Your Honor.
THE COURT: And nobody has leaned on you or twisted your arm to get you to plead guilty?
MR. ATKINS: No, Your Honor.
THE COURT: Has anybody promised you whether I would accept the plea or not?
MR. ATKINS: No, Your Honor.
THE COURT: Well, let’s see here. I’ll set his sentencing for October the 29th. That’s more than forty-five days, but that is the nearest date I have got to that.

The questions asked by the court fell short of the requirements of Ark. R. Crim. P. 24.4 which provides:

Advice by Court
The court shall not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally, informing him of and determining that he understands:
(a) The nature of the charge;
(b) the mandatory minimum sentence, if any, on the charge;
(c) the maximum possible sentence on the charge, including that possible from consecutive sentences;
(d) that if the offense charged is one for which a different or additional punishment is authorized because the defendant has previously been convicted of an offense or offenses one (1) or more times, the previous conviction or convictions may be established after the entry of his plea in the present action, thereby subjecting him to such different or additional punishment; and
(e) that if he pleads guilty or nolo contendere he waives his right to a trial by jury and the right to be confronted with the witnesses against him, except in capital cases where the death penalty is sought.

The judge asked questions of his own design to ascertain if the plea was voluntary. The rule, however, is designed to see to it that the plea is voluntary after the accused has certain information. Atkins was not personally informed by the court of the nature of the charge or any of the other items the rule requires except that he could have a jury trial. Nor was there any compliance with Ark. R. Crim. P. 24.6 which requires the court to make “such inquiry as will establish that there is a factual basis for the plea.”

In Clark v. State, 271 Ark. 866, 611 S.W.2d 502 (1981), we emphasized the requirement that the court ascertain that the plea was voluntary. We said substantial compliance with Rule 24.4 was sufficient. That opinion contained the following paragraph describing what we considered to have been substantial compliance in that case:

At sentencing the trial court questioned appellant as to the voluntariness of his plea. Appellant stated he understood the charges and the punishment; he was satisfied with the services of his attorney; he knew that he was entitled to a jury trial; his plea of guilty was voluntary because he was in fact guilty; he advised the court of a prior conviction in another state; and, after the court imposed sentence, appellant stated he understood the sentence and had no questions concerning it. As indicated, the court told appellant he would be required to serve one-third of the ten year sentence before becoming eligible to apply for parole.

In Clark v. State, supra, not only was there a far more detailed inquiry of the accused with respect to the items mentioned in Rule 24.4, but there the court ascertained a factual basis for the guilty plea in accordance with Rule 24.6. No court should accept a plea of guilt without determining whether the accused believes he is guilty and that belief has a substantial factual basis.

Because of this failure to comply with Rules 24.4 and 24.6, we must set aside Atkins’ plea of guilty to the burglary charge.

The only argument made as to the involuntariness of the guilty plea to the charge of failure to appear is that Atkins at first indicated uncertainty of the extent to which his attorney had advised him of the matters mentioned in Rule 24.4. The public defender stated in open court substantially all of the information required by the rule, and Atkins ultimately acknowledged he had been advised. While it would have been better had the court personally addressed Atkins on those matters, ¡the record is sufficient to show substantial compliance with the rule at that point.

3. The Habitual Criminal Act

Atkins contends his sentence was enhanced under the Habitual Criminal Act despite the fact that he has not been found guilty of violation of the act or had an opportunity to plead guilty or not guilty or otherwise to the “charge” of being an habitual criminal.

The Habitual Criminal Act, Ark. Stat. Ann. §§ 43-2328 through 43-2330 (Repl. 1977), does not define a separate offense as to which a plea must be entered. While the applicability of the act is “charged” in the sense that the trial court is notified of it in the information filed against the accused, no plea is required. The prosecutor may prove the prior convictions in accordance with § 43-2330, and they may then be considered in sentencing. See, e.g., Flurry v. State, 248 Ark. 722, 453 S.W.2d 402 (1970).

The “understandings” of both the counsel for Atkins and for the state, noted at the outset of this opinion, had to do with whether the court ultimately would be asked to apply the sentence enhancement provisions of the statute. The lack of clarity of the remarks of counsel in this respect should have alerted the court to the fact that the plea agreement was not being fully described for the record. While we need not hinge our decision upon it, it should be pointed out here that the requirement of Rule 24.5 that “the agreement” be stated is mandatory. Zoller v. State, 282 Ark. 380, 669 S.W.2d 434 (1984).

The sentence to four years in prison and the conviction of failure to appear is affirmed. The ten-year sentence and conviction of burglary as well as the plea of guilty to burglary are vacated, and the case is remanded so that the court may hear the appellant’s plea to the burglary charge in proceedings not inconsistent with the rules of criminal procedure and this opinion.

Purtle, J., not participating.


text:
    Danny ROBERTS v. STATE of Arkansas
    CR 85-203
    701 S.W.2d 112
    Supreme Court of Arkansas
    Opinion delivered December 16, 1985
    [Rehearing denied January 13, 1986.]

      Hale, Ward, Young, Green & Morley, by: Stephen E. Morley, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.

       Purtle, J., not participating.

   David Newbern, Justice.

This appeal is from conviction of the appellant of DWI and violation of the implied consent law. We affirm the DWI conviction as the evidence below supports the trial court’s finding that the appellant was intoxicated while in physical control of a vehicle in violation of Ark. Stat. Ann. § 75-2503(a) (Supp. 1985). We reverse and dismiss the appellant’s conviction of violation of the implied consent law because the evidence does not support a finding the appellant violated Ark. Stat. Ann. § 75-1045 (Supp. 1985).

1. DW1

A police officer found the appellant asleep at 1:30 a.m. behind the wheel of a car which was lodged against a building in a parking lot. The car and the building were damaged. The ignition key in the car was turned on, and the gear shift lever was in the “drive” position, but the engine was not running. The appellant was awakened by the officer whose undisputed testimony was that the appellant smelled of intoxicants, was unsteady on his feet, spoke in a slurred manner, and had to be “wrestled” from his position behind the steering wheel.

For the proposition that the evidence did not show the appellant to have been in actual physical control of the car, the appellant cites Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984), in which we held Dowell was not shown to have been in control of the car in which he was found asleep. There, the keys to the vehicle were found in the car seat at the time of the arrest.

We agree with the state’s contention that the facts of this case resemble more those in Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985), in which Wiyott was found asleep in the car with the keys in the ignition switch. The appellant in that case attempted to start the engine when he was awakened by officers. There, we sustained the conviction noting that the appellant could have at any moment awakened and started the car, and he was thus in as much control of a vehicle as an intoxicated person can be. We find the same to be true here.

As to whether the evidence was sufficient to show that the appellant in this case was intoxicated, we need only say we find the trial court was warranted in finding the circumstances mentioned earlier to have been convincing. The appellant’s argument is that the arresting officer did not give an opinion that the appellant was intoxicated and that the appellant could have been merely groggy after being aroused from a deep sleep. That does not explain the odor of intoxicants and the officer’s testimony that the appellant was unsteady on his feet even when they were at the police station later. When the issue is whether the evidence was sufficient, we view it most favorably to the appellee and sustain the verdict if there is any substantial evidence to support it. Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985); Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980).

2. Implied Consent

The appellant refused to take a blood alcohol test. He argues that only persons who operate a motor vehicle are deemed to have consented to take the blood alcohol test and that he has not been shown to have operated his vehicle. We need not get to the question whether the evidence was sufficient to show the appellant operated his car, because, even if it were shown that he had, the consent is deemed to have been given only if:

(1) The driver is arrested for any offense arising out of acts alleged to have been committed while the person was driving while intoxicated or driving while there was 0.10% or more of alcohol in the person’s blood, or
(2) The driver is involved in a fatal accident; or
(3) The driver is stopped by a law enforcement officer who has reasonable cause to believe that the driver is intoxicated or that the driver has 0.10% or more of alcohol in the person’s blood.

None of these subsections of Ark. Stat. Ann. § 75-1045 (Supp. 1985) apply. The appellant was not arrested for any act committed while driving while intoxicated. Nor was he involved in a fatal accident or “stopped” by an officer who had reasonable cause to believe him to have been intoxicated.

While it may have been a mere legislative oversight to have failed to include in the implied consent provisions reference to persons found in physical control of vehicles while intoxicated, we cannot cure that here.

While we need not decide the issue in this case, we make note of the appellant’s argument that had he signed the “rights form” presented to him by the police and agreed to the blood alcohol test he would have effectively been admitting that he had driven the car. That is one of the elements of DWI under § 75-2503(a), and no defendant should be required either to admit an element of an offense or face punishment, as that violates the right not to incriminate oneself. The argument has merit, and we will give it thorough consideration in an appropriate case. Here, however, it is enough to say that this appellant did not come within the literal provisions of § 75-1045(a).

Affirmed in part; reversed in part, and dismissed.

Purtle, J., not participating.


author: Per Curiam.

text:
    Charles A. D. BLISS and Anneta BLISS a/k/a Sharon BLISS a/k/a Sharon GIBBS v. STATE of Arkansas
    CR 85-194
    700 S.W.2d 366
    Supreme Court of Arkansas
    Opinion delivered December 16, 1985

      Janice Williams Wheeler, for appellants.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellants have filed a motion asking that they be given an open ended waiver of the page limitation on the argument portion of their brief. We decline to grant such a motion.

Before we grant a waiver of the page limitation, we must be satisfied that the party asking the waiver has made a good faith effort to write the argument in the allotted number of pages. It is only when such a good faith effort has been made, but with unsuccessful results, that we will grant a waiver, and that waiver will be only for the specific number of pages which we are convinced are necessary to complete the argument. We do not grant open ended waivers of page limitations.

Motion denied.

Purtle, J., not participating.


text:
    Mary Lee ORSINI v. STATE of Arkansas
    CR 83-66
    701 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered December 16, 1985

      Petitioner, pro se.

      Steve Clark, Att’y Gen., by; Clint Miller, Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioner was convicted of capital murder in 1982 and sentenced to life imprisonment without parole. We affirmed. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984), cert. denied_U.S__, 105 S. Ct. 162 (1984). Petitioner has now filed in this Court a lengthy petition for postconviction relief pursuant to A.R.Cr.P. Rule 37 seeking an evidentiary hearing in circuit court. She also asks for this Court to provide her with a copy of, or access to, the complete case file of the prosecuting attorney so that she can amend the petition.

Petitioner bases her plea for postconviction relief on nine or more primary allegations, depending on how the allegations are divided, each of which has multiple subpoints. The allegations in turn are supported by allegations contained in a 69-page petition she intends to file in circuit court if granted permission to proceed there and an additional set of attachments containing some 550 pages. For the sake of clarity, we will discuss the primary allegations of the petition without attempting to set out all the proof for each point which petitioner has provided in the circuit court petition and the set of attachments. The convoluted arguments advanced by petitioner, which require reference to both petitions and the attachments, illustrate the need for petitioners to include all grounds for relief in the petition to this Court. See Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). The petition to be filed in circuit court should be reserved for that court.

Petitioner first contends that the prosecution withheld from discovery exculpatory evidence in the form of two statements, one made by co-defendant Eugene Hall to Forest Parkman and Bill Williams and one by Carl Wilson contained in a report of the Alcohol, Firearms and Tobacco agency. Petitioner alleges that the prosecution permitted Hall to commit perjury since the state knew that Hall’s testimony was false when he testified as to the number of statements he had given. It is not clear when petitioner learned of the statements. She states in the petition to this Court that-she learned of the statements after trial. In the circuit court petition she says she became aware of the Hall statement before trial when the prosecutor mentioned it at a bond hearing. In any event, petitioner asserts that Tom Donovan, the attorney who filed a motion for new trial and represented her on appeal, was ineffective in that he referred to the statements only vaguely in the motion for new trial without stressing how important the Hall statement was to the defense.

The issue of whether petitioner was entitled to a new trial on the ground that the state wrongfully withheld exculpatory evidence was raised on appeal and decided adversely to the petitioner. It was argued then that both the statement of Hall and the AFT report containing Wilson’s statement were discoverable and deliberately suppressed by the state. Petitioner asserts essentially that counsel was ineffective in the way he handled the issue in the motion for new trial and on appeal, but a claim of ineffective assistance of counsel cannot serve as a means to reargue questions already settled. See Hickey v. State, 287 Ark. 197, 697 S.W.2d 118 (1985). Furthermore, even if counsel had neglected entirely to raise the question of the Hall and Wilson statements, petitioner would not be entitled to a new trial unless there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different. United States v.Bagley,_U.S__, 105 S. Ct. 3375 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). She has not demonstrated that the results of the proceeding against her would have been affected.

Petitioner also contends that an Arkansas State Police report concerning an interview with Robert Trout and an ATF report dated July 13,1982 were not provided to the defense. She further alleges that the information that Carl Wilson had been granted immunity in exchange for his statement and that Hall was induced to give a statement by promises of future help from the county sheriff was withheld. Petitioner further asserts that the jury was never informed that witness Burge had been granted immunity from prosecution. She states that she cannot recall whether she or her attorney knew about the immunity at trial.

When evidence is not disclosed and thus omitted from trial, the burden is on the petitioner to establish that its omission was sufficient to undermine confidence in the outcome of the trial. United States v. Bagley. This is a heavy burden which petitioner has not met. Petitioner’s speculation about the significance of the material in question is not enough to show that the defense suffered prejudice sufficient to affect the verdict.

Petitioner points out inconsistencies in witness testimony to which she contends trial counsel Jack Lessenberry should have objected. She also contends that counsel failed to interview witnesses and to ask important questions of witnesses who were called to testify.

The fact that a witness’ testimony is inconsistent is not cause for objection. Counsel may address inconsistencies on cross-examination of the witness and in closing argument, but the jury as trier of fact has the duty to resolve any inconsistencies and assess the witness’ credibility. McGee v. State, 280 Ark. 347, 658 S.W.2d 376 (1983).

Petitioner argues that the failure to call certain witnesses and ask the questions she suggests amounted to ineffective assistance of counsel because of the importance of each witness and question, but in any trial there are invariably questions which could have been asked and often witnesses who could have been called. The object of a review of a claim of ineffective assistance of counsel is not to debate the possible effect of counsel’s conduct but to determine whether there was actual prejudice which denied the petitioner a fair trial. See Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985). Petitioner has not shown that she was denied a fair trial.

Petitioner sought a reversal of her conviction on appeal on several grounds, two of which were excessive pretrial publicity and the trial court’s denial of a continuance. She seeks to raise these issues again. Rule 37, however, was not intended as a means to relitigate questions already settled on appeal. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981).

Petitioner alleges that her counsel on appeal asked her to research points to raise on appeal and then did not use them and refused to confer with her about the appeal. She fails to specify what meritorious points for reversal were omitted. Furthermore, counsel is not obligated to raise every issue suggested by the appellant. Counsel, not the appellant, must rely on professional judgment to decide what to argue on appeal. Dudley v. State, 285 Ark. 160, 685 S.W.2d 170 (1985). See also Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308 (1983).

Tom Donovan was reprimanded by the Committee on Professional Conduct in 1984 for violations of the Code of Professional Responsibility for conduct related to the attorney-client relationship between him and petitioner. Petitioner alleges that the Committee’s action is proof of counsel’s ineffectiveness, but she does not demonstrate that counsel’s conduct which led to the reprimand was related to his actual representation of her on appeal. A claim of ineffective assistance of counsel must be supported by proof of actual prejudice to the defense which arose from specific acts of counsel which affected the outcome of the proceedings against the accused. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

Despite the fact that Charles Wulz testified for the defense, petitioner contends that she should have a new trial on the ground that the prosecutor sought to induce him to falsify his testimony. Since petitioner states that Wulz testified truthfully, she could not have been prejudiced.

Finally, petitioner argues that this Court did not impartially review her conviction on appeal. She states that a member of this Court, Justice Purtle, commented before trial that it would be no problem to seat an unbiased jury because the publicity concerning her case was so great that people were tired of the case. Petitioner contends that the comment indicated Justice Purtle had formed an opinion about the issue of pretrial publicity before the trial was held.

We ruled on appeal that the petitioner could not claim a prejudiced jury or juror as she had not even used all her preemptory challenges. That appropriate, technical reason for rejecting her argument on appeal could not have been influenced by any member of this Court’s view on the matter of jury prejudice through pretrial publicity. Thus even if the petitioner were allowed to produce evidence that a member of this Court was biased on the question of pretrial publicity, that evidence would be irrelevant. In addition, Rule 27 of the Rules of the Supreme Court provides that when an appellant desires to suggest the disqualification of a member of this Court in a case to be submitted, the appellant shall present the matter to the Court before the date of submission of the case.

Petitioner also alleges there was an error in the opinion rendered on appeal. The same argument was made in petitioner’s request for rehearing which was denied. The point cannot be raised again under Rule 37.

Petitioner next alleges that former Justice Hollingsworth, a member of the Court when her conviction was affirmed, was a school friend of the victim’s husband and that Justice Hollingsworth’s law firm had represented him. She further asserts that the victim’s husband gave Justice Hollingsworth some unspecified privileged information before he was appointed to the Court.

The unsubstantiated allegation was not raised at the proper time when the case was decided on the merits by this Court. Rule 37 does not authorize a litigant to silently await a decision, and then, if the litigant does not like the result, later claim a judge had some personal bias or prejudice.

In the nearly eighty combined pages of petitioner’s petition and circuit court petition, she advances a myriad of allegations directed at her attorneys, the prosecution, the circuit court and others. Most of the grounds for relief áre based on allegations of errors which petitioner argues are either of constitutional dimension or the result of incompetent counsel. Mere error, however, even if it can be proven, is not good cause to set aside a valid judgment of a jury. Even questions of constitutional dimension must be raised in the trial court or on the record on appeal in accordance with the controlling rules of procedure, or else the issues are waived, unless they are so fundamental as to void the judgment absolutely. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985); Ruiz v. State, 275 Ark. 410, 630 S.W.2d 44, cert. denied, 459 U.S. 882 (1982). Noneof the many points raised by petitioner would void her conviction. Petitioner has also failed to establish that her counsel at trial or on appeal were ineffective.

To prove ineffective assistance of counsel, the petitioner must show that counsel’s performance was deficient in that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment. In addition, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Both showings are necessary before it can be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Pruett v. State. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington. In assessing counsel’s conduct, this Court is limited by the allegations as made by the petitioner who is entirely responsible for identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Even if counsel’s conduct can be shown to be professionally unreasonable, the judgment must stand unless the petitioner demonstrates that the error had a prejudicial effect on the actual outcome of the proceeding. As we find no basis on which to grant postconviction relief in this case, the petition is in all respects denied.

Petition denied.

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