source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice. Tom Glaze, Justice,

license: Public Domain

text:
    Julian Robert PROCTOR v. STATE of Arkansas
    CR 01-1382
    79 S.W.3d 370
    Supreme Court of Arkansas
    Opinion delivered July 5 2002

      William C. McArthur, for appellant.

      Mark Pryor, Att’y Gen., by: Clayton K. Hodges, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

After a jury trial, the appellant, Julian Robert Proctor, was convicted and sentenced to twenty years for attempted first-degree murder, fifteen years for attempted kidnapping, five years for stalking, five years for burglary, three years for terroristic threatening, and one year for third-degree battery, with the sentences to run concurrently except that the sentences for first-degree murder and attempted kidnapping were to run consecutively, for a total of thirty-five years in the Arkansas Department of Correction. On appeal, Proctor raises two points of error. First he contends that the trial court erred by admitting into evidence the transcript of an officer’s testimony from a bond-revocation hearing in a separate case. Second, he contends there is insufficient evidence to support his convictions. We agree that the trial court erroneously admitted the transcript of the officer’s testimony. However, as to all charges except attempted first-degree murder, we declare the error harmless because the evidence of guilt is overwhelming. Accordingly, we affirm those convictions, but reverse and remand the attempted-murder conviction.

I. Facts.

The resolution of Proctor’s points on appeal requires that we recite the facts of the case in some detail. On December 1, 1998, Proctor was charged with attempted first-degree murder, attempted kidnapping, and residential burglary. On June 9, 1999, the felony information was amended to add three counts of third-degree domestic battery, four counts of first-degree terroristic threatening, and one count of second-degree stalking.

Pursuant to Ark. R. Evid. 804(b)(1) (2002), the State moved, in limine, to allow the introduction of the transcript of Officer Burt Puckett’s testimony from a bond-revocation hearing in a separate case because he was unavailable due to service in the international peace-keeping force in Kosovo, Serbia. Procter objected on several grounds: first, bond hearings and trials involve different liberty interests and standards of proof, and admission of the testimony would be prejudicial; second, Proctor had different counsel at the bond hearing who did not know about evidence affecting Officer Puckett’s credibility; that is, the officer had invited the victim, Melissa Mahan, to go with him on a date prior to the arrest; third, admission of the evidence would violate the Confrontation Clause of the Sixth Amendment to the United States Constitution and Ark. R. Evid. 804(b)(1) (2001).

A. The Bond-Revocation Flearing.

On December 8, 1998, a hearing was held to determine whether to revoke Proctor’s bond resulting from a previous domestic disturbance involving him and Melissa. At that hearing, Officer Puckett testified concerning the events of November 29, 1998, that led to the instant charges. He had been assigned to conduct additional patrols of the vicinity of Melissa’s residence. Around mid-morning, he drove past her residence and noticed that her car door was open and her son was in the back seat. The boy told him that Proctor was inside the house. As the officer approached the front door, Proctor came outside. Initially, Officer Puckett spoke to Proctor in the yard. Then, after backup arrived, they moved to the officer’s car, at which point Proctor stated that he just wanted to talk with Melissa for about five minutes. Officer Puckett then asked Proctor if he realized he was there unlawfully, in that he had committed burglary.

Proctor’s arrest followed shortly thereafter, and he was orally advised of his Miranda rights at approximately 10:15-30 a.m. The officers performed a pat-down search and found duct tape, fleece gloves, canvas, a six-inch knife, handcuffs, pliers, and a flashlight. Proctor also had a Wal-Mart receipt in his wallet that indicated he had purchased the duct tape, a nylon rope, a flashlight, and the plier tool two hours earlier. The officers transported Proctor to the police station, where they mirandized him again and filled out a rights form at 12:55 p.m. Officer Puckett testified that during the custodial interview, Proctor confessed that he had pulled open the vent on top of Melissa’s house and had gone into the attic to await her return. Officer Puckett also testified that Proctor said he planned to tie her up with the duct tape and handcuffs, kill her, and then kill himself. No one other than Officer Puckett was present at the custodial interview. He did not take notes or make a tape recording of the interview; rather, he wrote down his recollection of what Proctor said shortly after the interview.

Melissa also appeared at the bond hearing, but testified that Proctor did not make any threatening gestures or make statements that threatened her life or that of her child. The trial court found that Proctor had violated the terms and conditions of the bond in the earlier domestic disturbance case and revoked his bond in that case.

B. The Pretrial Hearing.

On September 27, 1999, a pretrial hearing was held in this case in connection with the State’s motion to admit the transcript of Officer Puckett’s bond-hearing testimony because he was an unavailable witness. First, the prosecutor’s victim-witness coordinator, Charlotte Garrett Yates, testified about her attempts to contact Officer Puckett. After determining that he was in Kosovo, Serbia, she contacted Dyncorp in Fort Worth who told her she would have to go through the London, England office. The London office told-her that she could not call him directly, but they would attempt to get him á message. She never heard from Officer Puckett.

Proctor argued that the bond-hearing testimony was riddled with inadmissible hearsay and its introduction would violate his right to confrontation under the U.S. Constitution. He pointed out that the hearing was for the limited purpose of bond revocation, and that the testimony elicited at the hearing was not intended to be evidentiary for trial purposes. Proctor also argued that the attorney who represented him at the bond hearing did not know about Officer Puckett’s prior attempt to date Melissa and, therefore, could not have properly impeached the officer’s credibility at that hearing. The prosecutor responded that the bond hearing was a reliable, full-fledged hearing and that most of the questions proffered by Proctor could be answered by other witnesses. At the conclusion of the hearing, the trial court found that Officer Puckett was unavailable to the State as a witness and granted the State’s motion to admit the transcript of the officer’s' prior testimony.

C. The Trial.

The first witness, Melissa Mahan, testified as follows: She met Proctor when she hired him as the night auditor at the Comfort Inn in Conway. They were each married to other people at the time, became friends, and then began having an affair from June 1997 until February 1998. On February 13, 1998, she and a girlfriend were leaving her house when Proctor drove up and blocked the drive, saying he wanted to talk. They were able to get away, but he was following them, so they went to the police station to make a report. He then showed up at Melissa’s office in the Comfort Inn where he became angry and threw some things. She eventually calmed him down and he left. Because she was staying that night at the motel, she went up to her room, and the night clerk, Brandon Wittenberg, followed to make sure she was alright. A short time later, Proctor started banging on her door. In order to avoid waking the hotel guests, she opened the door, and he punched her in the face. She told Brandon to call the police when Proctor first appeared at her door; but, Proctor told Brandon that if he went and called the police, Melissa would be dead before he got back. Proctor hit her a couple more times and kicked her in the head and back. She eventually got up from the floor and laid down on the bed. When she woke up, Brandon was gone. At some point during the night, Proctor forced her to have sex with him. For the next couple of days, he continued to follow her.

Eventually, Melissa and Proctor got back together, but split up again in mid-April. At that time, Proctor was staying with their mutual friend, Michael Phillips, so Melissa took some of his things over to Michael’s apartment. When Proctor pulled up in his car and Melissa told him she was returning his things, he slapped her. She jumped in her car and left, with Proctor following in his car and Michael chasing both of them in his truck. The chase through town ended when Michael wrecked his truck.

Two months later, Proctor and Melissa moved in together, but an incident on November 15 caused them to break up again. Melissa had allegedly quit smoking. When Proctor found some cigarettes, he told her it was over. She tried to leave with her son, but Proctor took her car keys. While they fought over the keys, Melissa’s son went next door to tell someone to call the police. Proctor was gone by the time the police arrived. Officer Puckett took the report and helped Melissa look for her keys. She requested additional patrols for the next couple of weeks. The next day, Officer Puckett invited her to lunch, but she declined. Melissa also acknowledged that Officer Puckett had Thanksgiving dinner at her parents house, but she stated that there was nothing going on between them.

On November 29, 1998, Melissa and her son returned home after spending the night with her parents. She had changed the locks after the last breakup with Proctor. She found the door unlocked and the light on in the bedroom. When she heard the attic door close, Melissa told her son to get back in the car and then yelled at Proctor that she knew he was there and she was going to call the police. He jumped down from the attic, came into the living room to talk with her, and continued pleading for her to talk with him. She repeatedly told him there was nothing to talk about. When he saw the police arrive, he went outside, and Officer Puckett walked up. Melissa later saw the duct tape, gloves, knife, and handcuffs that the police had taken from Proctor.

On cross-examination, Melissa denied any romantic involvement with Brandon, but admitted that she dated Michael for a brief time. She also admitted that on the morning of November 29, she saw the door to her house close but went inside anyway. According to Melissa, Proctor made no threats or threatening moves toward her that day, and she did not feel threatened by him. Melissa did not want him arrested, still had feelings for him, and was testifying under subpoena.

The second witness was Brandon Wittenberg. He testified that while working, as a night clerk at the Comfort Inn, he became friends with both Melissa and Proctor, was aware of their sexual relationship, and witnessed their arguments, some of which were physical. The worst argument he witnessed was an incident that occurred in February. Brandon corroborated Melissa’s account of the events in the motel room, including Proctor telling him “if I left, it would probably be the last time I ever saw her alive[,]” and “if the police came or if I mentioned anything about calling the pohce that she would probably be dead before they got here[.]” He then recounted another incident caught on video tape in which Proctor kicked Melissa. On cross-examination, he conceded that the kicks did not have much force.

The third witness was Michael Phillips. He testified he was a former Comfort Inn employee. He knew both Proctor and the victim, and was aware of their relationship. On April 7, 1998, Melissa dropped some of Proctor’s belongings off at Micheal’s apartment. Proctor showed up, and Melissa told Michael that Proctor had slapped her. Michael then told Proctor to leave his apartment. He urged Melissa to make a police report, and headed for the police station to make sure she did. On the way, a car chase ensued, with Proctor pursuing Melissa and Michael not far behind in his truck. The chase ended when Michael wrecked his vehicle. He and Melissa began to date shortly thereafter. On cross-examination, Michael acknowledged that he and Proctor had been friends for about ten or eleven years. He also confirmed that he had an outstanding misdemeanor warrant, but the State had made no promises in return for his testimony.

Lt. John Thessing took the report concerning the April 7, 1998 accident. During his investigation, Melissa told the officer she was having trouble with Proctor, and that Proctor had hit her several times and threatened to kill her son.- However, the officer saw no marks on her that day.

Officer Christopher Padgett came in contact with Melissa on February 13, 1998, around 11:00 p.m. She came into the police station that night, complaining that Proctor would not leave her alone. Proctor walked into the police station behind her. Melissa said he had threatened both her and her son, was paging her, and was coming over to her house. Her pager displayed a row of sixes. Proctor explained to Officer Padgett that the numbers meant: “I love you to death[.]” The officer saw no signs of physical abuse at that time.

Officer James Abbey testified that he responded to a call to backup Officer Puckett at Melissa’s residence on November 29, 1998. As a result of the pat-down search, he found several items on Proctor’s person: a knife; a pair of handcuffs; a leatherman-type tool; duct tape; and a pair of gloves. Officer Abbey read Proctor his Miranda rights and placed him in the patrol car. He and Officer Puckett then walked around the house and observed mud on a railing, boot prints going up the side of the house, and a vent door on the roof that had been pried open. Later, he found Proctor’s car parked a couple of blocks away, behind a dumpster. Officer Abbey was the sponsoring witness for the various exhibits. On cross-examination, he agreed that Proctor’s knife was legal, as were each of the other items. However, the officer commented that while the knife could be used to skin a deer, the handcuffs and duct tape are not things one would use in the deer woods. Officer Abbey also testified that Proctor made no threats, did not attempt to use the knife as a weapon, and was cooperative.

Finally, Detective David Berry testified that he was the lead investigator on the case and served as the sponsoring witness for the transcript of Officer Puckett’s bond-hearing testimony. Following an objection by the defense, the transcript was read to the jury, with the prosecutor reading the questions and Detective Berry reading Officer Puckett’s responses. On cross-examination, Detective Berry admitted that Melissa had advised the department about Officer Puckett asking her out on a date. He agreed that this was unusual behavior for an investigating officer. Although the court received the transcript of Officer Puckett’s bond hearing testimony into evidence, a copy of the transcript was not given to the jury.

The State rested its case, and Proctor moved for a directed verdict on all counts. The trial court granted a directed verdict on two counts of third-degree domestic battery, but otherwise denied the motion. As the defense’s only witness, Josh Edwards testified he knew Proctor and Melissa and he had never witnessed any physical violence or fights between them, or any bruising. He stated his opinion of Proctor as being a nonviolent person would not change even though Proctor had been convicted of another count of third-degree battery.

The Arkansas Court of Appeals initially heard Proctor’s appeal and, in a 3-3-3 opinion, reversed and remanded on the issue of the admissibility of the bond-hearing testimony. Proctor v. State, 76 Ark. App. 48, 60 S.W.3d 486 (2001) (three judges found violations of both the Confrontation Clause and Ark. R. Evid. 804 (2001); whereas, three concurring judges found only a violation of Rule 804 and three dissenting judges found no violation of either Rule 804 or the Confrontation Clause). This court granted the State’s petition for review. When this court grants a petition for review of a decision from the court of appeals, the findings of the trial court are reviewed as though the appeal had originally been filed with this court. Threadgill v. State, 347 Ark. 986, 69 S.W.3d 423 (2002).

II. Sufficiency of the Evidence.

For double-jeopardy reasons, we consider a challenge to the sufficiency of the evidence before other points on appeal. However, in this case, the record reveals that Proctor did not renew his motion for a directed verdict at the close of all evidence. He is, therefore, procedurally barred from challenging the sufficiency of the evidence to support the verdict on appeal. “The failure to challenge the sufficiency of the evidence at both the close of the state’s case and the close of all of the evidence ‘will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.’” Love v. State, 324 Ark. 526, 529, 922 S.W.2d 701, 703 (1996) (citing Ark. R. Crim. P. 33.1).

III. The Bond Hearing Testimony.

Proctor argues that the introduction of testimony from the bond-revocation hearing was improper because its admission violated both the Confrontation Clause of the United States Constitution and Ark. R. Evid. 804(b)(1) (2001). As a preliminary matter, the State contends that the Confrontation Clause challenge was not preserved for appellate review because Proctor failed to obtain a ruling on this specific issue from the trial court. We will not review a matter on which the trial court has not ruled. Alexander v. State, 335 Ark. 131, 133-34, 983 S.W.2d 110, 111 (1998). In order to preserve a point for appellate review, a party must obtain a ruling from the trial court. Id. Matters left unresolved are waived and may not be raised on appeal. Id.

In his response to the State’s pretrial motion to admit the transcript of Officer Puckett’s bond-hearing testimony, Proctor argued that its admission would violate the Confrontation Clause of the United States Constitution. At the pretrial hearing, he emphasized an additional argument: the admission of the transcript would violate Rule 804 of the Arkansas Rules of Evidence. In making its ruling, the trial court merely stated that it found Officer Puckett to be unavailable and that it would allow the transcript to be introduced at trial. In view of Proctor’s two-fold argument below and the trial court’s failure to specify the basis for its ruling, we cannot say that Proctor failed to obtain a ruling on his Confrontation Clause argument.

The threshold argument on this point is that the State did not make a good-faith effort to procure Officer Puckett’s appearance. Defense counsel, however, conceded the issue at the pretrial hearing by stating: “I understand that Mr. Clark probably has done his best to try and retrieve Mr. Puckett from Kosovo, and I — I’m sure that truly is beyond, you know, his capability at that time[.]” Accordingly, this threshold argument is not preserved for appeal.

Both Rule 804(b)(1) and the Confrontation Clause deal with similar subject matter.

Any study of such an evidentiary rule in connection with a criminal case must be in conjunction with the confrontation clause of the Sixth Amendment. The Sixth Amendment provides that:
. . . the accused shall enjoy the right ... to be confronted with the witnesses against him. . . .
As Justice Stewart said in Dutton v. Evans, 400 U.S. 74, 86 (1970), the two concepts “stem from the same roots.” There has traditionally been an exception to the right of confrontation where a witness who testified at a prior trial is unavailable at a later judicial proceeding. Mattox v. State, 156 U.S. 237 (1895). State evidentiary rules can fall within this exception if two tests are met. First, the witness must be “unavailable.” A witness is not unavailable unless the State has made a good faith effort to obtain the witness’s presence at the trial. Barber v. Page, 390 U.S. 719 (1968). Next, the evidence must be reliable, and that is our only concern here.

Scott & Johnson v. State, 272 Ark. 88, 92, 612 S.W.2d 110, 112 (1981). The requirements of the Confrontation Clause are met where the witness is unavailable and the transcript testimony is reliable. Id.; Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). Officer Puckett was unavailable, serving in the Kosovo peace-keeping force. His prior testimony is rehable because it was taken under oath, before a judicial tribunal, and recorded by the court reporter. It should be noted that Proctor does not challenge the reliability of the transcript, but rather focuses on the motive for cross-examination. Thus, we hold that the constitutional requirements of the Confrontation Clause were met.

Rule 804(b)(1) permits the admission of former testimony under the following conditions:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Ark. R. Evid 804(b)(1) (2001) (emphasis added). To be admissible under Rule 804(b)(1), the motive for developing the testimony at the bond-revocation hearing must have been similar to the motive at trial.

Proctor relies upon this court’s decision in Scott & Johnson v. State, 272 Ark. 88, 612 S.W.2d 110 (1981), in which we focused on the nature of the two hearings. “Obviously admission depends upon the circumstances surrounding the hearing. In the case of a preliminary hearing admission depends on what kind of hearing is involved and whether it is a Tull fledged’ hearing or a limited one.” Id. at 93, 612 S.W.2d at 113. The Scott & Johnson court noted that the previous testimony was elicited at a probable-cause hearing with no extensive cross-examination.

[no] motive existed to develop testimony as one would have in a trial. ... To presume they [would have cross-examined] would be to presume they knew the testimony could be used later in the absence of the witness. . . . Moreover, a defendant, having no obligation to cross-examine, may for strategy’s sake forego examination. The defense may not wish to disclose its theory of defense.

Id. at 94-95, 612 S.W.2d at 113.

In Espinosa v. State, 317 Ark. 198, 876 S.W.2d 569 (1994), a witness revealed evidence that had not been disclosed to the defendant, and the trial court declared a mistrial. Id. Prior to the second trial, the witness died, and the State sought to admit the testimony from the first trial. Id. In affirming the trial court’s decision to admit the prior testimony, this court noted:

After Officer Jones mentioned the marked money, Espinosa had sufficient reason and motive to cross-examine Wilkins, who also testified about the marked money and police reports before a mistrial was declared. In this connection, we recount that the trial court, after Officers Jones, Wilkins and Hart testified and before a mistrial was declared, called a recess for the express purpose of allowing Espinosa to question any relevant witness about the report and the marked money. In fact, Espinosa’s trial counsel conceded that, during the called recess, he was given an opportunity to question Wilkins about everything.

Id. at 203, 876 S.W.2d at 571-72. We noted that Espinosa showed no prejudice from her inability to cross-examine the witness at the second trial. Id.

According to the defendant in Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993), the testimony from a federal habeas corpus hearing should not have been admitted because it was “based on ineffective counsel at the first trial, which casts doubt on defense counsel’s cross-examination[.]” Id. In determining that the former testimony was admissible, this court focused on the proffered questions to the absent witness, and concluded that “ [a] t best, the proffered questions appear to be of marginal benefit to the appellant’s cause. In sum, we conclude that the cross-examination was sufficient . . . .” Id. at 625, 863 S.W.2d at 823.

In Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993), this court applied the reasoning of Scott, supra, and determined that former testimony from a suppression hearing was admissible. Id. We held that the testimony was well-developed because of the cross-examination of the witness with the purpose to impeach the testimony on the very point at issue at trial. Id.

The State nonetheless contends it is only the opportunity to cross-examine that is critical, not a similar motive. Our case law does not support that proposition. In Scott & Johnson, we held that the motive to develop testimony at a probable-cause hearing was not similar to the motive to cross-examine at a trial. 272 Ark. 88, 612 S.W.2d 110. Espinosa involved testimony from a previous trial where the exact issue and motive to cross-examine existed. 317 Ark. 198, 876 S.W.2d 569. In Vick, we concluded that the cross-examination of the witness at a habeas corpus hearing was sufficient. 314 Ark. 618, 863 S.W.2d 820. Likewise, the Scroggins case involved a similar motive to cross-examine at a suppression hearing. It is clear that admission of prior testimony requires both the opportunity to cross-examine and a similar motive to develop the testimony. This court has consistently held that where the prior testimony was at a full-fledged proceeding, the motive to cross-examine was similar, and the witness was unavailable, the testimony was admissible under Rule 804(b)(1).

We note that our holding today is consistent with federal case law. When interpreting our rules of evidence, “we desire to maintain an interpretation of the Uniform Rules that is reasonably consistent with other states as well as with the Federal Rules of Evidence.” Rhodes v. State, 276 Ark. 203, 210, 634 S.W.2d 107, 111 (1982). The United States Supreme Court specifically addressed the question of “similar motive” under Fed. R. Evid. 804(b)(1) in U. S. v. Salerno, 505 U.S. 317 (1992). The issue in Salerno concerned exculpatory grand jury testimony. The United States argued the testimony should not be introduced because a prosecutor does not have a similar motive to develop testimony in grand jury proceedings as he or she would at trial. Salerno argued, as does the State in the instant case, that a similar motive is not necessary; rather, the opportunity to cross-examine is sufficient. Id. The Supreme Court disagreed and held that Salerno “had no right to introduce DeMatteis’ and Bruno’s former testimony under Rule 804(b)(1) without showing a ‘similar motive.’” Id. at 321-22.

The case was remanded for further consideration of whether the United States had a similar motive to develop the testimony before the grand jury. Sitting in banc on the sole issue of “similar motive,” the Second Circuit Court of Appeals determined that the' former testimony was properly excluded because the prosecution lacked a “similar motive.” U. S. v. DiNapoli, 8 F.3d 909, 910 (2nd Cir. 1993) (vacating a previous three-judge panel decision, U. S. v. Salerno, 974 F.2d 231 (2nd Cir. 1992)). The appellate court explained:

The proper approach, therefore, in assessing similarity of motive under Rule 804(b)(1) must consider whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue. The nature of the two proceedings •— both what is at stake and the applicable burden of proof — and, to a lesser extent, the cross-examination at the prior proceeding — both what was undertaken and what was available but forgone — will be relevant though not conclusive on the ultimate issue of similarity of motive.

Id. at 914-15. See also U. S. v. Fischl, 16 F.3d 927, 928 (8th Cir. 1994).

As we have already mentioned, Arkansas caselaw has stressed the importance of the nature of the two proceedings. The inquiry according to this court is whether the prior proceeding was a “full fledged” hearing. Scott & Johnson, 272 Ark. 88, 612 S.W.2d 110. The Second Circuit set out factors to determine the similarity of the proceedings: “both what is at stake and the applicable burden of proof — and, to a lesser extent, the cross-examination at the prior proceeding — both what was undertaken and what was available but forgone . . . .” U.S. v. DiNapoli, 8 F.3d at 914-15. The prior testimony in this case occurred at a bond-revocation hearing. We have held that a hearing concerning revocation of a defendant’s pretrial release under Ark. R. Crim. P. 9.6 (2001) is not a hearing of an adversarial nature that requires representation by counsel. Reeves v. State, 261 Ark. 384, 548 S.W.2d 822 (1977). In fact, such a hearing has a limited function. The sole purpose of the hearing is for the examining court to determine whether there is reasonable cause to believe that the defendant has committed a felony while out on bail on another charge. As such, it is analogous to a probable-cause hearing, which this court has held does not meet the “similar motive” requirement of Rule 804(b)(1). Scott & Johnson, supra.

It is therefore clear that what is at stake in a bond-revocation hearing is substantially different from what is at stake in a full-fledged hearing at trial. Under these circumstances, we conclude the State did not demonstrate that Proctor had a similar motive in this case in order to make use of Rule 804(b)(1). Moreover, Proctor’s attorney at the bond-revocation hearing did not have the benefit of any information about Officer Puckett’s romantic interest in the victim. Accordingly, we hold that Officer Puckett’s testimony from the bond-revocation hearing was erroneously admitted into evidence under Ark. R. Evid. 804(b)(1).

Our final inquiry is whether the error in admitting the testimony was prejudicial. An error in the admission of hearsay evidence does not automatically result in a reversal if the error was harmless. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). Where evidence of guilt is overwhelming and the error slight, we can declare the error harmless and- affirm. Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001). We therefore examine the evidence without Officer Puckett’s testimony to determine whether the error was harmless.

A. Third-degree Battery.

“A person commits battery in the third degree if: (1) [w]ith the purpose of causing physical injury to another person, he causes physical injury to any person . . . .” Ark. Code Ann. § 5-13-203(a)(1) - (a)(2) (Repl. 1997). Melissa and Brandon testifled concerning the incident at the Comfort Inn in which Proctor knocked Melissa to the floor and then kicked her. Lt. Thessing testified that Melissa told him Proctor had hit her several times. This evidence is overwhelming proof that Proctor, with the purpose of causing injury to Melissa, physically injured her. Accordingly, we hold that the improper admission of Officer Puckett’s testimony was harmless error as to the offense of third-degree battery.

B. Second-Degree Stalking.

A person commits stalking in the second degree if he purposely engages in a course of conduct that harasses another person and makes a terroristic threat with the intent of placing that person in imminent fear of death or serious bodily injury or placing that person in imminent fear of the death or serious bodily injury of his or her immediate family.

Ark. Code Ann. § 5 — 71—229(b)(1) (Repl. 1997). Michael Phillips testified that Proctor chased Melissa in his car. Melissa herself testified that Proctor followed her in his car on several occasions, blocked her car in her drive, and threatened to kill her. Even without Officer Puckett’s testimony, we conclude that the evidence of Proctor’s guilt on the stalking charge is overwhelming and, thus, the improper admission of the officer’s testimony was harmless as to the offense of second-degree stalking.

C. First-Degree Terroristic Threatening.

“A person commits the offense of terroristic threatening in the first degree if . . . [w]ith the purpose of terrorizing another person, he threatens to cause death or serious physical injury or substantial property damage to another person . . . . Ark. Code Ann. § 5-13-301 (a)(1)(A) (Repl. 1997). Once again, even without Officer Puckett’s testimony, the evidence of Proctor’s guilt on the charge of first-degree terroristic threatening is overwhelming. Melissa testified that Proctor threatened to kill her. Brandon corroborated her testimony. Furthermore, Proctor’s threats had been reported to Lt. Thessing and Officer Padgett. We conclude that the erroneous admission of Officer Puckett’s testimony was harmless as to the offense of first-degree terroristic threatening.

D. Residential Burglary.

“A person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-201 (a)(1) (Repl. 1997). Officer Abbey observed muddy footprints leading up the side of the residence and a vent on the roof that had been pried open to allow access to the attic. According to Melissa’s testimony, she had changed the locks at her residence before she returned home on November 28, 1998, only to find Proctor in the attic. This constitutes overwhelming evidence of Proctor’s guilt on the residential burglary charge, provided that his purpose was to commit an offense in the residence punishable by imprisonment. Our resolution of the latter inquiry necessarily depends upon the remaining two charges of attempted kidnapping and attempted first-degree murder. There must be overwhelming evidence of either offense without Officer Puckett’s testimony in order to affirm the residential burglary conviction under the harmless-error rule.

E. Attempted Kidnapping.

(a) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of:
(4) Inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him; or
(5) Terrorizing him or another person;

Ark. Code Ann. § 5-11-102(a) (Repl. 1997).

A person attempts to commit an offense if he . . . [pjurposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense .... Conduct is not a substantial step under this section unless it is strongly corroborative of the person’s criminal purpose.

Ark. Code Ann. § 5-3-201(a)(2) & (c) (Repl. 1997). The State had the burden of proving that Proctor intended to kidnap Melissa Mahan and that he took a substantial step toward the commission of the offense. With regard to the fact that a person’s intent or purpose cannot be shown by direct evidence, we have stated:

A person’s state of mind at the time of a crime is seldom apparent. One’s intent or purpose, being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances shown in evidence. Since intent cannot be proven by direct evidence, members of the jury are allowed to draw upon their common knowledge and experience to infer it from the circumstances.

Tarentino v. State, 302 Ark. 55, 58, 786 S.W.2d 584, 585-86 (1990) (internal citations omitted). See also Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002).

With regard to the substantial-step requirement, the Original Commentary to Ark. Code Ann. § 5-3-201 (Repl. 1995), includes a nonexclusive list of examples of conduct that:

if strongly corroborative of criminal purpose, might reasonably be held by a trier of fact to be substantial steps:
(1) lying in wait [for] the contemplated victim of the offense;
(4) unlawful entry of a structure, vehicle or inclosure in which it is contemplated that the offense will be committed;
(6) possession, collection or fabrication of materials to be employed in the commission of the offense, at or near the place contemplated for its commission where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;

The commentary also notes that the enactment of the statute represented a change in Arkansas law “by allowing imposition of criminal liability for conduct further removed from consummation of an offense. But it remains clear that under the Code not every act done in conjunction with the intent to commit a crime constitutes an attempt to commit the crime.” Id. (internal citation omitted). Without Officer Puckett’s testimony that Proctor confessed he was going to tie Melissa up with duct tape and handcuffs and kill her, there was no direct evidence of his intent to kidnap the victim. Therefore, the State was required to show overwhelming circumstantial evidence: (1) of his intent to restrain Melissa’s liberty for the purpose of terrorizing or harming her; (2) of a substantial step toward the commission of the crime; and (3) that his actions were strongly corroborative of his criminal purpose. “We weigh the evidence in this second stage because even slight error cannot be said to be harmless in a case in which the question of guilt or innocence is a close one, but it can be in a case where the evidence of guilt is overwhelming.” Numan v. State, 291 Ark. 22, 28, 722 S.W.2d 276, 279 (1987).

The evidence supporting the verdict is as follows: A receipt from Wal-Mart indicated that Proctor had purchased duct tape, a nylon rope, a flashlight, and a plier tool two hours before breaking into Melissa’s residence. Officer Abbey testified that when arrested, Proctor had a knife, a pair of handcuffs, duct tape, a leatherman-type tool, and gloves; and that he parked his car several blocks away. Proctor had broken into the attic and was hiding there. He came down from the attic in response to Melissa’s threat to call the police.

While the above evidence might be sufficient to withstand a substantial-evidence challenge, we must determine whether the evidence of Proctor’s guilt on the attempted kidnapping charge is overwhelming. Melissa testified that after he came down from the attic, Proctor sat down in the chair and pleaded with her to talk with him. He made no threats or threatening moves toward her that day. She also testified that she was standing in the doorway of her home during this time. Officer Abbey testified that Proctor’s knife was legal, as were the other items; that he made no threats, did not attempt to use the knife as a weapon, and was cooperative. Because the circumstantial evidence of Proctor’s intent to restrain Melissa’s liberty for the purpose of terrorizing or harming her was not overwhelming, we cannot say the admission of Officer’s Puckett’s testimony was harmless. We therefore reverse Proctor’s conviction on the charge of attempted kidnapping.

F. Attempted First-Degree Murder.

“A person commits murder in the first degree if. . . [w]ith a purpose of causing the death of another person, he causes the death of another person . . . .” Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). Once again, section 5-3-201 (a)(2) states that a person commits the criminal act of attempt when he “purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense . . . .” Here, the State had the burden of proving that Proctor intended to murder Melissa and that he took a substantial step toward the commission of the offense. As with the attempted-kidnapping offense, the State had no direct evidence of Proctor’s intent to commit murder without the testimony of Officer Puckett. We must, therefore, consider whether there was overwhelming proof in the form of circumstantial evidence that Proctor intended to murder Melissa.

Several witnesses testified concerning a history of domestic abuse and threats. Melissa testified about the pattern of abuse, the threats, the stalking, and the incident on November 29, 1998. Brandon told the jury about the physical abuse in February 1998, including Proctor’s threats to kill Melissa. Michael testified concerning the physical abuse and Proctor’s obsessive behavior. Officer Padgett confirmed that Melissa made reports of domestic abuse. He also testified that a message from Proctor to Melissa consisting of sixes across her pager meant “I love you to death.” Finally, evidence regarding Proctor’s purchase and possession of the crime tools, the break-in, and the hiding of his car were introduced through Officer Abbey.

The testimony summarized above, although sufficient to meet “the substantial step” element of attempted murder, does not constitute overwhelming evidence of Proctor’s intent to murder Melissa on November 29, 1998. The pager message could be evidence of something other than a death threat. Melissa herself did not feel threatened by Proctor during the incident; nor did he attempt to flee when confronted by Melissa and the police. In fact, Proctor was cooperative and did not resist arrest. While the tools found in Proctor’s possession were indicative of an intent to restrain Melissa’s liberty, we cannot say that the evidence, without the testimony of Officer Puckett, was overwhelming proof of Proctor’s intent to murder Melissa. We therefore reverse Proctor’s conviction on the charge of attempted first-degree murder.

Because we have reversed the convictions for attempted kidnapping and attempted first-degree murder, the conviction for residential burglary must also be reversed for lack of an underlying crime punishable by imprisonment, and we remand for further proceedings consistent with this opinion. However, for the reasons set forth earlier in this opinion, Proctor’s convictions on the charges of stalking, terroristic threatening, and battery are affirmed under the harmless-error rule.

Affirmed in part and reversed and remanded in part.

Glaze, J., dissenting in part.

Tom Glaze, Justice,

dissenting in part. While I agree with the majority opinion’s statement of the law with respect to the proof needed to establish the crime of attempted kidnapping, I must respectfully dissent from the majority’s conclusion that there was not overwhelming evidence of Julian Proctor’s guilt on the. attempted kidnapping charge. The majority correctly notes that intent can seldom be proven by direct evidence, and that it must frequently be established by circumstantial evidence. See, e.g., Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Jackson v. State, 290 Ark. 160, 717 S.W.2d 801 (1986) (inferring from circumstantial evidence an intent to terrorize a kidnapping victim). Likewise, the majority properly states that the prosecution had to offer overwhelming circumstantial evidence of three elements: 1) of Proctor’s intent to restrain Melissa’s liberty for the purpose or terrorizing or harming her; 2) of a substantial step toward the commission of the crime; and 3) that his actions were strongly corroborative of his criminal purpose.

However, I disagree with the majority’s application of these rules to the facts presented in the case at hand. Evidence of Proctor’s intent to restrain Melissa can be found in the fact that he had handcuffs and duct tape — items that can be employed to restrain another — in addition to a knife. Next, evidence of a substantial step toward the commission of the crime can be seen in his breaking into her home. See subsection (4) of the Original Commentary to Ark. Code Ann. § 5-3-201 (Repl. 1995). Finally, Proctor’s actions were strongly corroborative of his criminal purpose. After breaking into Melissa’s house, he waited in her attic, in possession of a knife (as well as the other items discussed above) for her to come home. Clearly, Proctor was not in her attic planning to bake cookies. I would hold that the foregoing constitutes overwhelming evidence of Proctor’s guilt on the attempted kidnapping charge.

       Fines in the total amount of $5,000 were also imposed.

       The wording of the Sixth Amendment Confrontation Clause is incorporated into the Arkansas Constitution Article 2, section 10. See Hale v. State, 343 Ark. 62, 83, 31 S.W.3d 850, 863 (2000) (“This court has consistently interpreted the Confrontation Clauses of the United States and Arkansas Constitutions to provide identical rights.”)

       Fed. R. Evid. 804(b)(1) (1999)s is identical to the Arkansas rule.

       Rule 9.6 of the Arkansas Rules of Criminal Procedure provides: “If it is shown that any court has found reasonable cause to believe that a defendant has committed a felony while released pending adjudication of a prior charge, the court which initially released him may revoke his release.”

       Proctor also argues that having different attorneys at the prior hearing and at trial made the transcript inadmissible; however, Rule 801(b)(1) and our case law are concerned with the opportunity and motive to cross-examine the witness, not the identity of the attorney.


author: Annabelle Clinton Imber, Justice.

text:
    TAY-TAY, INC., Arkansas Payday Check Cashers, Inc., Two Cluck, Inc. d/b/a Payday Advance, and Jim Mead v. Brandon YOUNG, Jimmie Sue Spencer, and Karla Blackford
    01-1377
    80 S.W.3d 365
    Supreme Court of Arkansas
    Opinion delivered July 5, 2002

      Mixon, Parker, & Hurst, PLC, by: Donald L. Parker, II and Harry S. Hurst, Jr.; Wright, Lindsey & Jennings, LLP, by: Claire Shows Hancock, for appellants.

      Orr, Scholtens, Willhite, & Averitt, PLC, by: Chris A. Averitt, Jay Scholtens, and Kevin J. Orr; Morgan & Turner, by: Todd Turner, for appellees.
   Annabelle Clinton Imber, Justice.

Appellants, Tay-Tay, Inc., Arkansas Payday Check Cashers, Inc, Iwo Cluck, Inc. d/b/a Payday Advance, and Jim Mead (Jointly “Payday Advance”), appeal the Craighead County Circuit Court’s certification of a class of plaintiffs, including appellee class representatives Brandon Young, Jimmie Sue Spencer, and Karla Blackford, in this class-action lawsuit. In a typical transaction, the customer would use the services of Payday Advance by presenting a check to Payday Advance in the amount of $233.33, for which the customer received $200 in cash in return. The interest or fee of $33.33 allowed the customer to keep the $200 for two weeks, at which time he or she had to pay $233.33. The customer could then commence anew, again presenting a check for $233.33, which Payday Advance again would agree to hold for two weeks. In March 2001, Payday Advance changed its terms and agreed to give the customer $200 in exchange for a $216 check that could be bought back in two weeks for $216 cash plus an “insufficient funds” charge of $25. As such, the customer, under the new transaction, gave Payday Advance a total of $241.00 in return for an advance of $200.

The class representatives filed a class-action lawsuit against Payday Advance alleging that the deferred presentment was, in fact, a loan with interest rates ranging from 300 percent to over 700 percent per annum and that the transaction violated the usury laws as provided in Article 19, Section 13 of the Arkansas Constitution and the Arkansas Deceptive Trade Practices Act, codified at Ark. Code Ann. §§ 4-88-201, et seq. (Repl. 2001). On March 16, 2001, Payday Advance filed a motion to compel arbitration and stay proceedings based upon a compulsory arbitration clause in the Deferred Presentment Agreement. The class representatives responded arguing that the agreement was void and that the arbitration clause was unenforceable on the grounds of lack of mutuality, as well as void and unconscionable. The trial court agreed with the appellees, and Payday Advance appealed that decision. The trial court’s order finding the arbitration clause unenforceable was affirmed by this court in Tay-Tay, Inc. v. Young, 349 Ark. 369, 78 S.W.3d 721 (2002) (“Payday Advance I”).

On January 26, 2001, the class representatives filed a motion for class certification. Payday Advance responded on February 7, 2001, arguing that the appellees failed to satisfy the requirements of Ark. R. Civ. P. 23 to certify a class action. Following a hearing on the motion, the trial court issued its order certifying the class on August 17, 2001. Payday Advance then filed its appeal on September 17, 2001.

The question of whether the requirements for a class action under Ark. R. Civ. P. 23(a) and (b) have been satisfied is a matter within the broad discretion of the trial court, and we will not reverse the trial court’s decision absent an abuse of that discretion. Advance America v. Garrett, 344 Ark. 75, 40 S.W.3d 239 (2001); Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997); Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997); Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders & Members, 323 Ark. 706, 918 S.W.2d 129 (1996); Cheqnet Sys., Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995). However, the determination is purely a procedural question. BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000). Neither the trial court nor the appellate court may delve into the merits of the underlying claim when deciding whether the requirements of Rule 23 have been met. Id.; Fraley v. Williams Ford Tractor & Equip. Co., 339 Ark. 322, 5 S.W.3d 423 (1999) (holding that trial court may not consider whether plaintiff will ultimately prevail); Mega Life & Health Ins. Co. v. Jacola, supra.

I. Sufficiency of Trial Court’s Order

As an initial matter, Payday Advance asserts that the trial court “failed to undertake the required rigorous analysis” in considering the class-certification request, and that the court merely repeated the requirements in Rule 23 without discussion or analysis. Payday Advance argues that the United States Supreme Court requires a “rigorous analysis” to ensure that all requirements of Rule 23 have been met. See Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997). Payday Advance’s argument, however, is without merit for two reasons.

First, Payday Advance’s argument that the trial court’s order lacks specific findings is not preserved for appeal. As we noted in Mega Life,

[t]his issue is governed by Ark. R. Civ. P. 52(a) which states that “findings of fact and conclusions of law are unnecessary on decisions of motions under these Rules,” but that the court shall enter such specific findings and conclusions upon the request of a party. It does not appear from the abstract that Mega ever requested that the court make such specific findings in regard to the predominance and superiority requirements of Rule 23(b).
Moreover, Rule 52(b) states that upon a motion of a party made no later than ten days after the entry of judgment, the court may amend its findings of fact or make additional findings. Thus, Mega had ten days after the order of certification was entered to ask the trial court to make additional findings regarding the Rule 23(b) elements. Mega, however, failed to make such a request. Because Mega failed to request specific findings in regard to the Rule 23(b) elements either prior to or after the entry of the order of certification, we hold that it has waived this issue on appeal. See Smith v. Quality Ford, Inc., 324 Ark. 272, 920 S.W.2d 497 (1996); Brown v. Seeco, Inc., 316 Ark. 336, 871 S.W.2d 580 (1994) .

Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 267-68, 954 S.W.2d 898, 900 (1997). In this case, as in Mega Life, Payday Advance faded to request specific findings of fact on the Rule 23 elements; nor did it file a motion pursuant to Rule 52(b) after entry of the judgment asking the trial court to make additional findings. Thus, Payday Advance has waived this issue on appeal.

Second, we do not require that the trial court conduct a “rigorous analysis” under Rule 23 as Payday Advance asserts. Again, this issue was addressed in Mega Life:

We also must respond to the dissent’s contention that the certification order must be reversed because the trial court failed to conduct a “rigorous analysis” of the Rule 23(b) requirements of predominance and superiority. In support of this argument, the dissent cites Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995) . The Arthur opinion, however, is devoid of any language requiring the trial court to conduct a “rigorous analysis.” In fact, we are unable to find any Arkansas case requiring the trial court to conduct a rigorous analysis, or for that matter, any case that describes exactly what such an analysis entails. Instead, we have consistently held that we will reverse a trial court’s certification order only when the court has abused its discretion. Direct Gen. Ins. Co. p. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997); Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders, 323 Ark. 706, 918 S.W.2d 129 (1996). In making this determination, we have consistently reviewed the evidence in the record to determine whether it supports the trial court’s ultimate conclusion regarding certification. See, e.g., Direct Gen., supra; Arthur, supra. We have not, as argued by the dissent, previously required the court to enter into the record a detailed explanation of why it concluded that certification was proper, and we refuse to impose such a requirement upon the trial court at this time.

Mega Life & Health Ins. Co. v. Jacola, 330 Ark. at 269, 954 S.W.2d at 901. The trial court’s order in this case is therefore adequate because “[ijmplicit in the trial court’s order granting class certification is the court’s ultimate conclusion that all six elements of class certification have been satisfied.” Id. at 268, 954 S.W.2d at 900. While Payday Advance waived its right to get specific findings on the issue, it has not “waived its right to contest the trial court’s ultimate Conclusion that all six elements have been satisfied as required by Ark. R. Civ. P. 23.” Id. at 268, 954 S.W.2d at 901 (emphasis in original).

II. Rule 23

Rule 23 of the Arkansas Rules of Civil Procedure provides that a trial court may certify a class only if the following conditions are met:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

Ark. R. Civ. P. 23(a) (2002). Pursuant to subsection (b), the court must also find that:

the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

Ark. R. Civ. P. 23(b) (2002). In this appeal, Payday Advance challenges the elements of adequacy of the class representative and typicality under Rule 23(a) and the elements of predominance and superiority under Rule 23(b).

A. Rule 23(a) Adequacy of Class Representatives

The first of these challenges by Payday Advance involves the issue of the adequacy of the class representatives under Rule 23(a)(4). This court has previously interpreted Rule 23(a)(4) to require three elements:

(1) the representative counsel must be qualified, experienced and generally able to conduct the litigation; (2) there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation.

BPS Inc. v. Richardson, 341 Ark. 834, 844, 20 S.W.3d 403, 407-08 (2000). Payday Advance directs its focus on the adequacy of the class representatives and not the adequacy of the class counsel. This court has noted that the “adequacy of representation” element is satisfied if the representatives display a minimal level of interest in the action, familiarity with the challenged practices, and ability to assist in litigation decisions. Id. In addition, a trial court may also consider it necessary, in its analysis of this requirement for class certification, to resolve any questions of reluctancy on the part of named class representatives to comply with requirements of disclosure or participation in discovery requests during the pendency of the litigation. Id.

Payday Advance contends that none of the named class representatives can represent claims against Two Cluck, .Inc. and Mr. Mead because the record does not reflect that any of the class members did business with either Two Cluck or Mr. Mead. However, Mr. Mead owns all the companies named as defendants and Two Cluck did business as Payday Advance. The resolution of the issue of Two Cluck’s and Mr. Mead’s involvement in the case would require this court to analyze the merits of the case. As noted above, we will not delve into the merits of the underlying case on appeal when considering the propriety of certification of class. Furthermore, the appellees have not yet been allowed to conduct discovery on the merits.

2. Class Representative Jimmie Sue Spencer

Payday Advance alleges that Ms. Spencer is unable to adequately and fairly represent the class because she is involved in other class action suits against other check cashers, and she has inadequate knowledge of the case. In her deposition, Ms. Spencer stated that she did business with Payday Advance and that the class action suits were based on the fact that the companies “charge too much interest for the service that they are providing.” She stated her goal as a class representative: “My goal is, I think that personally if they are going to offer this service, they should do it at a more reasonable, they should not be allowed to charge that much interest because most people aren’t aware of it. . . . I would like for people not, common people, just working every day, working class people, who live from pay check to pay check, not to be taken advantage of because they can do it.” She speaks with the attorneys once or twice a week. She said that she will be able to take time off from work as needed, that her attorneys had explained the duties of a class representative, and that she understood them. The trial court did not err in ruling that Ms. Spencer could adequately and fairly represent the class.

2. Class Representative Karla Blackford

Payday Advance claims that Ms. Blackford lacks the knowledge to adequately represent the class and that she was less than truthful when she first said she had not done business with other check cashing companies. In her deposition, Ms. Blackford stated that she had done business with other check cashing companies even though she had earlier stated that she had only used Payday Advance; however, she believed they were all the same company just using different names. She understands the nature of the case as “these loans were illegal, based on the amount of interest that they were charging . . . .” She stated her goal as “[j]ust to see that it be put in, that a law be passed or some kind of legislation be passed that the interest be charged at a legal rate, that it not be such a high loan, an interest loan, that you cannot pay it.” She speaks with the attorneys “four, five times in a two to three week period.” She said she was willing to attend the trial, if necessary. Based on the foregoing, Ms. Blackford demonstrates an interest in the proceedings, a general understanding of the proceedings, and a willingness to assist in the litigation. Her confusion as to the identity of the various check cashers does not disqualify her. The trial court did not err in ruling that Ms. Blackford could adequately and fairly represent the class.

3. Class Representative Brandon Young

As with Ms. Spencer, Payday Advance contends that Mr. Young cannot represent the class because he is involved in other check cashing cases and does not have adequate knowledge. Payday Advance also claims that Mr. Young is untruthful. In his deposition, Mr. Young explained that he used the check cashing services of Payday Advance and that “I believe that the interest rates or fees as you call it are too high as for the money that we’re paying, or getting loans from . . . .” He speaks with the attorneys about once per week. He understands his responsibilities as a representative to be willing to go to court. “I would also not look out for just myself, but as the whole class, as a group, and be willing to testify for the group.”

As to Mr. Young’s veracity, in his affidavit, he stated that “[w]hen I returned to the Payday Advance office on June 26, 2000, I was told I could pay off the check or pay an additional Thirty Three Dollars and Thirty Three Cents ($33.33) cash to renew the loan.” He admits that his description was not completely accurate. In actuality, he had to give Payday Advance $233.33 in cash; then, he could give them another check for $233.33; they would give him another $200 and defer presentment of the new check for two weeks. This confusion does not prevent him from adequately representing the class. •

The trial court did not err in ruling that the named representatives meet the minimal bar set by the third requirement derived from Rule 23(a)(4), as noted in BPS, Inc., supra, and in USA Check Cashers of Little Rock, Inc. v. Island, 349 Ark. 71, 76 S.W.3d 243 (2002). Therefore, we affirm the trial court’s decision that the named class members adequately and fairly represent the class.

B. Rule 23(a) ■— Typicality

In its next challenge under Rule 23(a), Payday Advance asserts that the class representatives’ claims are not typical of the claims of the class because they signed an arbitration agreement requiring them to settle disputes by arbitration and prohibiting them from acting as a class representative in a class action against Payday Advance. This argument is without merit because we affirmed the trial court’s determination that the arbitration agreement is unenforceable. See Payday Advance I, supra. Furthermore, the named representatives’ claims are typical, if not identical, to the claims of each class member. Basically, each class member is asserting a claim of usury dependent on this court resolving the questions of whether these transactions are “loans” with “interest” and, if so, whether the interest charged is usurious. We stated in USA Check Cashers:

Class members, of course, may opt out of the class if they are not satisfied with the complaint or remedies asserted. See, e.g., Luebbers v. Advance Am. Cash Advance Ctrs. of Arkansas, Inc., 348 Ark. 567, 74 S.W.3d 608 (2002); Haberman v. Lisle, 317 Ark. 600, 884 S.W.2d 262 (1994). Although we held in BPS Inc. v. Richardson, supra, that class certification is not appropriate when a putative class representative is subject to unique defenses that threaten to become the focus of the litigation, that is not the case in the matter before us. The general defenses asserted against Island and Carter such as estoppel, waiver, and statute of limitations may be just as applicable to other members of the class and may warrant the establishment of subclasses. They are not unique to the appellees.

USA Check Cashers of Little Rock, Inc. v. Island, 349 Ark. at 81. While this discussion in USA Check Cashers stemmed from the appellant’s challenge to the appellees’ adequacy as class representatives, the reasoning is equally applicable in a discussion on typicality of claims or defenses of the class. Each class member in this lawsuit will be asserting the same claim of usury. Payday Advance’s defenses or claims against particular class members or subsets of class members does not defeat the initial usury inquiry. We, therefore, affirm the trial court’s decision that the named representatives’ claims are typical of the claims of the class.

C. Rule 23(b) Predominance and Superiority

In its final point, Payday Advance argues that the named representatives failed to satisfy the requirements of Rule 23(b) that “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Specifically, Payday Advance argues that the trial court will “be faced with literally hundreds of individual questions of fact” if the class is certified, and resolving these questions will overwhelm the trial court and predominate over the one question common to all class members — whether the fees charged are interest under Arkansas law. The class representatives respond that this one question is the reason the case is proper for class certification in that whether these fees constitute interest affects every class member because the fees would be usurious by law. This court has already addressed the issues of superiority and predominance in a check-cashing case in USA Check Cashers, supra, and our holding in that case applies here. With regard to the superiority requirement, we stated in USA Check Cashers:

This court has held with respect to superiority that the requirement is satisfied if class certification is the more “efficient” way of handling the case and if it is fair to both sides. See BPS, Inc. v. Richardson, supra. Real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary. See SEECO, Inc. v. Hales, supra; Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991).
Here, the circuit court ruled that because the potential recovery to each member of the class was expected to be relatively small and would not justify contingency fee cases nor cases in which attorneys charge on an hourly basis, a class action was the superior method for adjudicating these claims. The overarching issue in this case concerns USA Check Cashers’ uniform practice of requiring a fee in exchange for an agreement to defer presentment of the customer’s check for payment and whether that fee is usurious interest. Because of the pervasiveness of this issue in the transactions of all potential class members, it would be economically and judicially inefficient to require all putative class member, of which there could be as many as 2,680, to file individual suits in a small claims court.
To be sure, USA Check Cashers may have defenses available to it as to various individual members or even subclasses, but this is no reason to deny certification. To the contrary, this court has held that the class-action procedure is judicially efficient in resolving not only common claims but also common defenses. See, e.g., SEECO, Inc. v. Hales, supra; Mega Life & Health Ins. Co. v. Jacola, supra. The Proposed Trial Management Plan submitted to the court by Island and Carter certainly contemplates resolving common defenses in Phase I, as evidenced by the language of the proposal: “The Court may also determine in Phase I of the trial any common defenses asserted by the defendant, e.g., whether class members who entered into a transaction after the filing of this lawsuit are estopped from asserting a claim.” Finally, as to manageability, this court has made it abundantly clear that a circuit court can always decertify a class should the action become too unwieldy. See BNL Equity Corp. v. Pearson, supra; Fraley v. Williams Ford Tractor & Equip. Co., supra.
We conclude that a class action is the superior method for adjudicating the class members’ claims.

USA Check Cashers of Little Rock, Inc. v. Island, 349 Ark. at 82-83. The court went on to address the issue of predominance, stating:

For its final point, USA Check Cashers argues that the claims of individual claimants depend on each claimant’s particular interaction with the company. Additionally, the company asserts that because individual defenses would become the focus of the litigation, class certification is inappropriate.
We have already addressed this point in large part. USA Check Cashers appears to be challenging the predominance requirement, and the starting point for our analysis is whether a common wrong has been alleged against USA Check Cashers respecting all class members. See BPS, Inc. v. Richardson, supra. Again, as already underscored in this opinion, there are overarching, common questions present in this case as the circuit court outlined in its order. Those questions include: whether USA Check Cashers’ transactions were loans with interest accruing and whether those transactions violated the Arkansas Constitution. We conclude that these common questions predominate over individual questions. The mere fact that individual issues and defenses may be raised by the company regarding the recovery of individual members cannot defeat class certification where there are common questions concerning the defendant’s alleged wrongdoing which must be resolved for all class members. New-berg on Class Actions speaks directly to this point:
Challenges based on the statutes of limitations, fraudulent concealment, releases, causation, or reliance have usually been rejected and will not bar predominance satisfaction because these issues go to the right of a class member to recover, in contrast to underlying common issues of the defendant’s liability.
SEECO, Inc. v. Hales, 330 Ark. at 413, 954 S.W.2d at 240 (quoting 1 Herbert B. Newberg, Newberg on Class Actions § 4.26, at 4-104 (3d ed. 1992)).
Again, common issues, as far as alleged wrongdoing and defenses, predominate in this case, and we affirm the trial court on this point.

USA Check Cashers of Little Rock, Inc. v. Island, 349 Ark. at 83-84. Clearly, this court has already addressed the issues of superiority and predominance in a check-cashing case, and Payday Advance raises no new issues for consideration; nor does it raise any new arguments as to why these elements cannot be met here. As such, the reasoning this court employed in USA Check Cashers, supra, addressing the provisions of Rule 23(b) applies equally to this case. Accordingly, we affirm the trial court on this point as well.

Affirmed.

Glaze, J., not participating.


author: Ray Thornton, Justice.

text:
    Larry FROELICH v. Billy Dean GRAHAM
    01-1310
    80 S.W.3d 360
    Supreme Court of Arkansas
    Opinion delivered July 5, 2002

      George D. Oleson, for appellant.

      Hirsch Law Firm, P.A., by: E. Kent Hirsch, for appellee.
   Ray Thornton, Justice.

This appeal stems from appellant Larry Froelich’s attempt to collect unpaid attorney’s fees through the imposition of an attorney’s lien on funds that his client, Nita Cox, gave to appellee, Billy Graham.

Nita and Walter Cox were divorced in 1984. The divorce decree required that Walter pay $2,000 per month in alimony until Nita’s death or remarriage. Walter stopped making payments after the December 1997 installment. Nita Cox engaged the services of appellant, the attorney who had handled the divorce of her boyfriend, Billy Dean Graham, and on March 2, 1998, Nita petitioned to have Walter found in contempt and the arrearage reduced to judgment. In his response, Walter admitted that he had stopped making the payments; however, he affirmatively asserted that for the past eighteen months, Nita and Mr. Graham had been holding themselves out as husband and wife and that they were, in fact, lawfully married.

The case was heard on three separate days. During the hearing, Nita and Mr. Graham testified. Between the second hearing day, November 6, 1998, and the third, December 4, 1998, Walter’s trial counsel became aware of a decision of the Arkansas Supreme Court, Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998), which was handed down on November 4, 1998. He concluded that it made Walter’s defacto marriage defense untenable, and he announced to the court at the December 4 hearing that he would tender a check for $23,642.71 to Ms. Cox. The remaining issues were submitted to the chancellor.

Nita gave the check, which she received from Walter, to Mr. Graham. On December 8, 1998, Mr. Graham deposited this check into his bank account.

On January 14, 1999, appellant filed notice of an attorney’s lien, asserting that, according to his agreement with Ms. Cox, he had accrued fees and expenses and that, pursuant to Ark. Code Ann. § 16-22-304 (Repl. 1999), an attorney’s lien attached to the settlement check that Walter had paid to Nita.

In a letter opinion, filed on February 24, 1999, the chancellor found Walter in willful contempt and awarded Nita $2,200 in attorney’s fees.

On April 1, 1999, appellant petitioned to enforce the attorney’s hen against the alimony settlement. In a letter order, the chancellor found that the petition for contempt based on Walter’s unilateral termination of alimony constituted a cause of action that was separate and distinct from the causes of action concerning the issues of whether alimony should be continued or terminated and whether Walter had violated other orders of the court. The chancellor further found that $2,200, the amount that he had previously awarded for the contempt and that had already been paid to appellant, constituted a reasonable attorney’s fee for the “cause of action involving the contempt proceeding” as it related to Walter’s failure to pay spousal support. The chancellor concluded that the Arkansas Attorney’s Lien Law did not give appellant an attorney’s lien on the $23,642.71 check for back alimony.

This decision was appealed to our court of appeals. On appeal, appellant contended that the trial court erred in refusing to enforce his attorney’s lien because all of Ms. Cox’s claims were inextricably connected to the principal claim. On December 20, 2000, in an unpublished opinion, the court of appeals held that appellant had properly secured an attorney’s lien, and remanded the matter to the chancery court to determine the amount of attorney’s fees to which appellant was entitled.

On remand, the chancellor found that appellant was entitled to $8,486 in attorney’s fees. He further concluded that appellant could not look to the check Ms. Cox had tendered to Mr. Graham for payment of those fees. The chancellor found that appellant could not. make a claim to the $23,000 check that Ms. Cox gave to Mr. Graham because he did not have knowledge that appellant “was making any claim to the monies.”

It is from this order that appellant appeals. We reverse the chancellor and remand the matter to the court for further proceedings.

On appeal, appellant argues that the chancellor erred when he refused to impose an attorney’s lien on a settlement check that appellant’s client' gave to appellee. The chancellor, in denying appellant’s requested lien, found:

[T]he evidence presented at the hearing simply does not prove that Mr. Graham had knowledge that petitioner was making any claim to the monies (in the form of a $23,000 check) which was endorsed to Mr. Graham and became his property. Therefore, Mr. [Froelich] is not entitled to- a judgment against Mr. Graham.

An attorney’s lien is created by complying with Ark. Code Ann. § 16-22-304. The statute in relevant part provides:

(a) (1) From and after service upon the adverse party of a written notice signed by the client and by the attorney at law, solicitor, or counselor representing the client, which notice is to be served by certified mail, a return receipt being required to establish actual delivery of the notice, the attorney at law, solicitor, or counselor serving the notice upon the adversary party shall have a lien upon his client’s cause of action, claim, or counterclaim, which attaches to any settlement, verdict, report, decision, judgment, or final order in his client’s favor, and the proceeds thereof in whosoever’s hands they may come.
(2) The lien cannot be defeated and impaired by any subsequent negotiation or compromise by any parties litigant.
(3) However, the lien shall apply only to the cause or causes of action specifically enumerated in the notice.
(b) In the event that the notice is not served upon the adverse party by an attorney at law, solicitor, or counselor representing his client, the same lien created in this section shall attach in favor of the attorney at law, solicitor, or counselor from and after the commencement of an action or special proceeding or the service upon an answer containing a counterclaim, in favor of the attorney at law, solicitor, or counselor who appears for and signs a pleading for his client in the action, claim, or counterclaim in which the attorney at law, solicitor, or counselor has been employed to represent the client.
(d) The court or commission before which an action was instituted, or in which an action may be pending at the time of settlement, compromise, or verdict, or in any chancery court of proper venue, upon the petition of the client or attorney at law, shall determine and enforce the Hen created by this section.

Id. (Emphasis added.)

We have explained that an attorney’s lien is an interest in the judgment of which the attorney cannot be deprived. Camp v. Park, 226 Ark. 1026, 295 S.W.2d 613 (1956). We have further explained that an attorney’s lien is based on equitable principles establishing that an attorney’s hen is based on the natural equity that a plaintiff should not be allowed to appropriate the whole of a judgment in his favor without paying for the services of his attorney who assisted in obtaining such judgment. Id.

An attorney’s lien is created on the day their client’s cause of action is filed. McNeil v. Percy, 201 Ark. 454, 145 S.W.2d 32 (1940). This lien takes priority over debts that the attorney’s client owes to other creditors even if the creditor’s claim predates the assertion of a right to enforce the attorney’s lien. Id. The idea that an attorney’s lien takes priority over a third-party creditor was addressed in McCain v Portis, 42 Ark. 402 (1883), where we held:

[A] solicitor, in consideration of his trouble and the money he disburses for his client, has a right to be paid out of the duty decreed for the plaintiff, and a hen upon it, before the Bond creditors. . .[.]

Id.

In St. Louis, I. M. & S. RY. Co. v. Hays & Ward, 128 Ark. 471, 195 S.W.2d 28 (1917), while discussing our attorney’s lien statute, we held:

This language is very comprehensive and creates a lien in favor of the attorney on his client’s cause of action, in whatever form it may assume in the course of the litigation, and enables him to follow the pro ceeds into the hands of third parties, without regard to any settlement before or after judgment.
The lien operates as security, and if the settlement entered into by the parties is in disregard of it and to the prejudice of plaintiffs attorney, by reason of the insolvency of his client, or for other sufficient cause, the court will interfere and protect its officer by vacating the satisfaction of judgment and permitting execution to issue for the enforcement of the judgment to the extent of the lien, or by following the proceeds in the hands of third parties, who received them before or after judgment impressed with the lien.

Id. (Emphasis added.)

An attorney’s lien follows the judgment into whatever form it may assume. See Porter v. Taylor, 36 Ark. 591 (1880) (holding that even though the complaint sought money damages and land was actually recovered the attorney’s lien attached to the land). We have also noted that an attorney’s lien cannot be defeated by the insolvency of the client. The assignees of the insolvent can only take his property subject to the claims by which it was affected as against him. McCain, supra.

After reviewing the foregoing legal principles, we conclude that appellant may attach his attorney’s hen to the check that appellee received from Ms. Cox. Specifically, we hold that a perfected attorney’s lien attached to the check that Ms. Cox received as a result of appellant’s efforts to recover her back alimony. This lien was not defeated by Ms. Cox transferring the check to appellee. Finally, we conclude that any debt Ms. Cox owed appellee was secondary to appellant’s attorney’s hen.

Having determined that an attorney’s lien may be attached to a settlement check that has been transferred to a third party, we must now determine whether the chancellor erred in requiring appellant to give appellee notice of his attorney’s lien. Arkansas Code Annotated 16-22-304 does not require an attorney to give notice of his hen to a third party or to his client’s creditor.

Our case law has also held that an attorney is not required to give notice of his attorney’s lien to third parties or creditors. In Sexton v. Pike, 13 Ark. 193 (1852) we explained:

As against the assignee of the judgment, his equity is in no way created, nor is it easy to conceive why it should be necessary to enhance it by notice to him, either express or implied, to say nothing of the impracticability of such a duty in general, even when he might suspect that his client designed to assign the judgment. It already exists, and adheres in, and is interwoven with his legal rights, and is asserted as against the defendant under their auspices, and needs not be enhanced as against the assignee of the judgment, because being prior, it is already paramount to his equity-the assignee’s rights being equitable only and not legal, as we have heretofore distincdy held of assigned judgments.
And whether the attorney proceeds against the defendant in the judgment after thus fixing his liability or against the assignee of the plaintiff who has discharged the judgment either fraudulently or on receiving the avails, he is regarded by a court of equity as himself an assignee of the judgment to the extent of his lien, and is afforded relief in the one case by considering the payment made by the defendant in his own wrong and nugatory to the extent of the attorney’s lien, and in the other case, by decreeing against the assignee the sum received by him to the attorney’s use, or to which he was entitled, all such liens as well as rights of assignees having been originally protected and enforceable in equity, only, although subsequendy adopted at law.

Id. (Internal citations omitted.)

Our case law has also explained that notice is not required to assignees of a judgment because: (1) they should know that there was a pending law suit; (2) they should know that there are costs associated with litigation; and (3) they should inquire as to whether the attorney has been paid for services rendered before accepting the assignment. McCain, supra.

Remaining mindful of Ark. Code Ann. § 16-22-304 and our case law, we conclude that the chancellor erred when it found that appellant’s attorney’s lien could not be enforced upon the check Ms. Cox gave appellee based on a lack of notice to appellee. As the statute and cases demonstrate, there is no notice required to enforce an attorney’s lien. Once appellant filed the petition for citation of contempt on behalf of Ms. Cox, an attorney’s lien attached to any judgment Ms. Cox received as a result of appellant’s work. Because appellant had a lien against the check appellee received from Ms. Cox, that lien followed the proceeds into appellees’ hands subject only to such affirmative defenses as might be shown by appellee. Accordingly, we reverse the chancellor’s findings and remand this matter to the trial court for a development of the issues and to determine whether appellee has any affirmative defenses that would invalidate the lien.

Reversed and remanded.

Hannah, J., not participating.

Special Associate Justice Mark Allison joins in this opinion.

Glaze, J., dissents because appellant Larry Froelich waived his right to an attorney’s lien.

       We note that in a point raised by appellee, it is argued that appellant should not be permitted to enforce his attorney’s lien because he failed to take steps to protect his interest in the settlement check. Specifically, appellee argues that appellant should have either: (1) retained actual physical possession of the check; or (2) put the money in the registry of the court. There is no requirement in the statute or case law that mandates that an attorney must place property, to which he seeks to imposes a lien, in the registry of the court. Additionally, there is no requirement that an attorney must take actual possession of property to which he seeks to impose a lien. Accordingly, appellee’s argument is misplaced.