author: Tom Glaze, Justice.

text:
    ATLANTA EXPLORATION, INC., J. C. Ferguson III and Bettye Perry v. ETHYL CORPORATION
    89-213
    784 S.W.2d 150
    Supreme Court of Arkansas
    Opinion delivered February 12, 1990

      Compton, Prewett, Thomas & Hickey, P.A., by: I. Prewett', and Burbank, Dodson, & McDonald, by: Don B. Dodson, for appellants.

      Anderson, Crumpler, & Bell, P.A., for appellee.
   Tom Glaze, Justice.

This appeal involves an oil, gas and mineral rights case. Appellants, Atlanta Exploration, Inc. (Atlanta), J. C. Ferguson III (Ferguson III), and Bettye Perry (Perry), contend the trial court erred (1) in holding Ferguson III’s and Perry’s ownership interests were effectively integrated in a brine production unit established by appellee, Ethyl Corporation (Ethyl), in 1982, (2) in finding Ethyl not liable for penalties or attorney’s fees under Ark. Code Ann. §§ 15-74-601 to -74-604 (1987) and in failing to award prejudgment interest, and (3) in applying the three-year statute of limitations erroneously. Ethyl, on cross-appeal, argues the trial court erred in finding that Ferguson Ill’s grandfather, J. C. Ferguson Sr., had not committed fraud in executing certain documents and receiving royalties and in holding that Atlanta should not be barred from recovery because it knew about and benefited from that fraud. We affirm the trial court’s decision on appeal, but modify the judgment to award the appellants prejudgment interest, and affirm on cross-appeal.

The facts are largely undisputed. On May 24, 1960, H.C. Ferguson conveyed by warranty deed all of his undivided interest in S.W. ¼ of N.W. ¼ of Section 18, Township 18 south, Range 19 west, located in Columbia County, to J. C. Ferguson Jr. (Ferguson Jr.), his grandson. This property is the center of this controversy. In 1964, Ferguson Jr. died intestate survived by his widow, Bettye Ferguson (now Perry), and his son Ferguson III. After Ferguson Jr.’s death, on February 11,1966, H. C. Ferguson again conveyed the same property by warranty deed to his son, Ferguson Sr. In 1980, Ferguson Sr. executed leases for oil, gas and brine, regarding the property. Ethyl became the owner of the leases, and was unaware at the time that Ferguson III owned the Ferguson acreage subject to Perry’s claim as Ferguson Jr.’s widow.

In 1982, Ethyl drilled Baker No. 1 well on a 160-acre oil and gas unit and Ethyl also petitioned the Arkansas Oil and Gas Commission to form a brine unit of 1076.5 acres using this same well. The Ferguson acreage was included in the units, but was not the land on which the well was located.

Notice of Ethyl’s application to establish the brine unit was published for one day in the Magnolia newspaper, The Daily Banner News. The notice requested that the owners of unleased interests within the unit elect whether or not to participate in 60 days. The notice also contained a list of the owners of unleased mineral interest, but stated that it included but was not limited to those listed or named owners. Ferguson III and Perry were not specifically listed because Ethyl was unaware of their ownership of property. The acreage subsequently was unitized by order of the Arkansas Oil and Gas Commission. Ethyl’s well proved very successful and produced oil, gas and brine from 1982 until 1986. In 1986, Ethyl completed the drilling of another well named Baker No. 2, and its first disbursements were made in January of 1987. Brine continued to be produced to the time this litigation was filed. Ferguson Sr., rather than Ferguson III and Perry, received royalties from the well’s production because of the leases he previously executed.

When Atlanta learned of Ethyl’s plans to drill Baker No. 2 well, it commenced acquiring oil and- gas leases in the acreage involved, and on May 20, 1987, Ferguson Sr. executed such a lease, which included the same property described in the earlier leases. Alan Ribble, the sole stockholder of Atlanta, discovered Ethyl’s earlier mistake when he forwarded the new lease to Ethyl. Ethyl refused to pay because the leases were signed “J. C. Ferguson,” and the ownership of the property was in the name of Ferguson Jr.

Ribble subsequently called Ferguson Sr., and after discussing with him the relationships between the various Fergusons and the leases and deeds as they were executed, Ribble became fully aware that Ethyl had paid royalties to the wrong Ferguson.

Ribble did not immediately inform Ethyl of its mistake, because he first wanted to execute a lease with the correct person. After leasing from J. C. Ferguson III, Atlanta then notified Ethyl about its mistake.

Atlanta, Ferguson III and Perry joined forces in suing Ethyl to collect past royalties.* * Specifically, they requested that the court quiet title to the Ferguson acreage in Ferguson III, recognize Perry’s claim in such acreage, declare Atlanta the owner of the leasehold estate covering the acreage and award Ferguson III and Perry statutory penalties and attorney’s fees for bringing the action. Ethyl answered denying the appellants were entitled to any relief. It also counterclaimed, raising certain general defenses but in particular, alleged that Atlanta was not entitled to relief because it had benefited from Ferguson Sr.’s fraudulent execution of documents and receipt of royalties. As previously noted above, the trial court denied Ethyl’s claim altogether, and while it recognized appellants’ respective interests in the property, leases and deeds in issue, the court limited recovery from Ethyl to those mineral interests payable only during the three-year period prior to the appellants’ filing their action.

In their first argument, appellants claim basically that they are not bound by the Oil & Gas Commission’s 1982 integration order that unitizes the Ferguson acreage or by any royalties paid as a result of it and that they are entitled to recover the fair market value of the brine produced since 1982, less the production costs. To support their argument, they argue the notice given by the Commission was not proper, it was not directed to “unknown owners” and it was not directed to non-resident owners, which Ferguson III was at the time the integration order was issued. Appellants offer no case authority in support of their argument and cite only Ark. Code Ann. § 15-76-309(b) (1987), which requires that integration orders be made after notice and hearing and § 15-76-310 (1987), which provides that a copy of the integration must be sent or otherwise made available to each owner in the unit.

Although Ethyl’s notice did not mention unknown owners, it was addressed to “unleased mineral interest owners” and it then listed, but stated it was not limited to, each owner known at the time. Certainly, Ferguson III came within such a description. In these matters, the General Assembly has given the Commission broad authority when prescribing its procedure regarding its hearings as follows:

(a) The commission shall prescribe its rules of order and procedure with respect to all hearings or proceedings hereunder in accordance with and as limited by the laws of this state applicable to hearings and other proceedings before the commission under other acts of this state, including provisions of law regarding notice and hearing and provisions of law regarding the promulgation by the commission of rules, regulations, and orders, including changes, renewals, or extensions thereof and including emergency promulgations.

Ark. Code Ann. § 15-76-307(a) (1987).

Furthermore, § 15-76-307(b) provides the Commission with the authority to prescribe the manner and form of the notice given of the public hearing that is required before the Commission promulgates or issues any rule, regulation or order. The Commission’s notice met the twenty-day notice requirement set out in § 15-76-307(b), and it also otherwise is in keeping with Ark. Code Ann. § 15-72-323 (1987), another related statutory provision, that requires a public hearing notice to be published at least one time in a general circulation newspaper in the county or counties where the lands are embraced. Appellants urge no constitutional or due process arguments regarding the notice provided by the Commissioner. Nor do they argue that Ark. R. Civ. P. Rule 4 should apply. In sum, we hold the Commission’s notice met the statutory requirements, and the public hearing and resulting integration order issued by the Commission in 1982 were proper and binding on the appellants.

In the second point, the appellants argue that they are entitled to 12% interest on the back royalties owed to Ferguson III and that their attorney’s fees should be paid. Ark. Code Ann. § 15-74-601(a) (1987) establishes the time limits when oil and gas payments must be made. Section 15-74-601 (e), in relevant part, provides that if payment is not made within these time limits, the first purchaser (here Ethyl) is required to pay interest to those legally entitled to the withheld proceeds at the rate of 12% per annum on the non-paid amounts. In addition, Ark. Code Ann. § 15-74-603 (e) provides that the prevailing party in any proceeding brought for proceeds not paid timely shall be entitled to recover any court cost and reasonable attorney’s fee.

In support of this argument that they are entitled to penalties and attorney’s fees, appellants cite TXO Production Corp. v. Page Farms, Inc., 287 Ark. 304, 698 S.W.2d 791 (1985) and TXO Production Corp. v. First Nat’l Bank of Russellville, 288 Ark. 338, 705 S.W.2d 423 (1986). Although attorney’s fees were affirmed on appeal in those two cases, the facts involved in those holdings are clearly distinguishable from the ones before us now. In the first TXO Production case, the court concluded that there was no evidence to support TXO’s claim that it failed to pay proceeds because it found the title was unmarketable. The court found that even TXO’s own title opinion failed to support TXO’s position. In the second TXO case, this court merely affirmed the trial court’s assessment of penalties and attorney’s fees because TXO made untimely payments.

Here, Ethyl made timely payments, but due to a mistake, it made them to the wrong person, viz., Ferguson Sr. instead of Ferguson III. Our court has recognized that our law governing timely oil and gas payments is remedial. TXO Production Corp. v. First Nat’l Bank of Russellville, 288 Ark. 338, 705 S.W.2d 423. When considering remedial legislation, we have stated that it should be construed with appropriate regard to the spirit which prompted its enactment, the mischief sought to be abolished and the remedy proposed. Skelton v. B. C. Land Co., 260 Ark. 122, 539 S.W.2d 411 (1976). Arkansas’s law is designed to prevent a company from withholding the payment of royalties to persons entitled to them. It does not, however, embrace or address the situation where timely payments are made but, by mistake, were made to the wrong person. Under these circumstances, we believe the trial court correctly refused to award appellants the penalty and attorney’s fee they requested.

Appellants alternatively argue they are entitled to prejudgment interest. We agree. The trial court awarded judgment to appellants for certain payments that had accrued within the three-year period prior to filing this action. After deducting a $500.77 amount paid J. C. Ferguson, as stipulated by the parties, the court calculated that Ethyl owed Ferguson III and Atlanta $3,651.87 and Perry was due $1,825.93. Except for its claim against Atlanta on cross-appeal, Ethyl does not challenge these amounts or judgments.

We have stated that the test for an award for prejudgment interest is whether a method exists for fixing an exact value on the cause of action at the time of the occurrence of the event which gives rise to the cause of action. See Hopper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983); Lovell v. Marianna Fed. Sav. & Loan Ass’n, 267 Ark. 164, 589 S.W.2d 577 (1979). If such a method exists, prejudgment interest should be allowed, because one who has the use of another’s money should be justly required to pay interest from the time it lawfully should have been paid. Id. Where prejudgment interest is collectible at all, the injured party is always entitled to it as a matter of law. Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981). Here, clearly at the time of the trespass, the amount of damages could be determined. Therefore, prejudgment interest must be awarded to give the appellants complete indemnity. See Ward v. Spadra Coal Co., 168 Ark. 853, 272 S.W. 353 (1925).

Considering appellants’ final argument, we first note that all parties agree that the appellants’ claims are ones of trespass and that the three-year statute of limitations under Ark. Code Ann. § 16-56-105(4) (1987) applies. The parties differ, however, on when the limitation commenced. Appellants contend that the three-year period did not commence until the trespass was discovered in May of 1987, or until the last oil and gas lease was taken in December of 1986. Appellee argues the limitation period began when the original trespass occurred in 1982. The trial court agreed with appellee’s position below, and on appeal, we agree as well.

The original, wrongful act complained of in this matter was the inclusion of Ferguson Ill’s property in the 160-acre drilling unit, and the production that commenced from that unit in 1982. Appellants agree on this point, and the parties also agree that the trespass was a continuing one from that date. However, appellants suggest that Ferguson III could have never been reasonably expected to discover the trespass. In this respect, he argues variously that he was a non-resident of the state, was unaware he owned the Ferguson acreage and that even if he knew of such ownership, the well was not located on the acreage.

In Arkebauer v. Falcon Zinc Co., 178 Ark. 943, 12 S.W.2d 916 (1929), the court held that where a wrongful act results in a recurring or continuing injury, there is a cause of action not only for the injury consequent upon the original act but also for such successive ones as may result in the future, in which case the statute attaches at the time of the occurrence of the injury. This court has also held that a mere ignorance of one’s rights does not prevent the operation of the statute of limitations, but where the ignorance is produced by affirmative and fraudulent acts of concealment, the statute of limitations does not begin to run until the fraud is discovered. Williams v. Purdy, 233 Ark. 275, 265 S.W.2d 534 (1954). The court in Williams, quoting from McKneely v. Terry, 61 Ark. 527,33 S.W. 953 (1896), stated the following rule with approval:

No mere ignorance on the part of plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiffs cause of action concealed, or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence, might have detected the fraud, he is presumed to have had reasonable knowledge of it.

The Williams court also announced that the mere fact plaintiffs are non-residents does not entitle them to preferred consideration under the statute of limitations. Williams, 223 Ark. at 279, 265 S.W.2d at 536.

In the present case, the record reflects no evidence that Ethyl perpetrated any fraud in this matter and any wrong it committed was due to mistake. And while appellants argue that Ferguson III could never have reasonably discovered Ethyl’s mistake and resulting trespass in 1982, we believe the evidence reflects otherwise. Here, Ferguson III, although a small boy at the time of his father’s death, could have later ascertained the status of his father’s estate. The deeds and leases executed in connection with the Ferguson estate were recorded as a matter of public record, and exercising reasonable diligence, Ferguson III could have learned of his acreage and how it had been affected. Since the trial court limited appellants’ recovery for production revenues to the three-year period prior to bringing this action, it presumably concluded the limitations commenced in 1982. After reviewing the record, we are unable to say the court was clearly erroneous.

On cross-appeal, Ethyl argues the trial court erred in finding that Ferguson Sr. did not commit fraud and in concluding Atlanta was not barred from recovery by having benefited from that fraud. Ethyl cites Malakul v. Altech Arkansas, Inc., 298 Ark. 246, 766 S.W.2d 433 (1989), for the proposition that one who accepts the fruit of fraud, knowing the means by which it was obtained, is liable therefor even though he did not personally participate in the fraud.

The simple answer to Ethyl’s claim is that there is sufficient evidence to support the trial court’s finding that Ferguson Sr., by his acts, did not intend to misrepresent his ownership or entitlement to the Ferguson acreage and royalty payments. Admittedly, there was evidence that Ferguson Sr. varied in the use of his signature, when executing documents, sometimes using Sr. or Jr. and, at other times, using neither designation. While one might argue such practice was Ferguson Sr.’s way of misrepresenting his ownership of the property and entitlement to royalty payments, Ferguson Jr. testified that he had discovered his grandfather (Ferguson Sr.) thought he actually owned the acreage. Atlanta’s Mr. Ribble also testified that he believed Ferguson Sr. thought he was entitled to the royalties he was receiving. Based upon this and other evidence in the record, the trial court was reasonably justified in holding Ferguson Sr. committed no fraud, and as a consequence, we are in no position to hold the court was clearly wrong in so finding.

For the reasons stated above, we affirm on appeal but modify to award prejudgment interest and affirm on cross-appeal.

       We note that J. C. Ferguson III uses a different spelling of his name, but for clarity we will use only one spelling of Ferguson in our opinion.

       Apparently, Ethyl’s title work reflected Ferguson Jr. owned the property rather than Ferguson III because nothing appeared of record showing Ferguson Jr. had died. One of the earlier leases was signed by Ferguson Sr. as “J. C. Ferguson,” but no one questioned whether the lease was signed by the right Ferguson.

       Actually, they agreed to deduct all royalties previously paid Ferguson Sr. but asserted they were entitled to the fair market value of such royalties which had not been paid and which was in excess of the royalties already paid.

         Appellee mentions Rule 4 in its brief, but disposes of it by stating the Rule does not apply when special statutory provisions for notice are applicable. See Watts v. Reynolds, 286 Ark. 425, 692 S.W.2d 247 (1985); Ark. R. Civ. P. Rule 81(a).

       This section has been amended since this action was tried below. See Ark. Code Ann. § 15-74-603(e) (Supp. 1989).

       In so stating we note the appellee’s misplaced reliance on Dobson v. Oil & Gas Comm'n, 218 Ark. 160, 235 S.W.2d 33 (1950). We refused to address the question of prejudgment interest on royalties in Dobson, because the chancellor had not ruled on the issue in the first instance. However, here the chancellor specifically stated that the appellants were not entitled to prejudgment interest. Appellee offers no other legal authority or argument concerning why prejudgment interest should not be awarded in these circumstances.


source: Caselaw Access Project

license: Public Domain

text:
    Archie WILSON v. STATE of Arkansas
    CR 89-195
    783 S.W.2d 852
    Supreme Court of Arkansas
    Opinion delivered February 12, 1990
    [Rehearing denied March 19, 1990.]

      Val P. Price, for appellant.

      Steve Clark, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.

      Price, J., not participating.

   Tom Glaze, Justice.

Appellant was convicted of burglary and theft of property. On appeal, he claims the state’s evidence was insufficient to support the theft conviction. We disagree and affirm.

Under Ark. Code Ann. § 5-36-103(a)(1) (Supp. 1989), a person commits theft of property if he knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof. Here, appellant and an accomplice, Lee Turner, were seen entering the apartment of Kim Cruise at a time she was out of town. The witnesses observing the appellant and Turner called the police and then called on the assistance of the apartment complex’s maintenance supervisor and four men, who were nearby playing basketball. Upon reaching Cruise’s apartment, the men opened the door and saw appellant holding a stereo and a big TV; Turner was holding a pillow case with stuff in it. The apartment was in shambles. The appellant and Turner ran out of the apartment after putting down the items they were holding. When they were caught by the men who had found them, appellant had none of Cruise’s property, but Turner had possession of a watch and lighter owned by Cruise.

Appellant contends that because he never left Cruise’s premises with any property, the state failed to prove he had consummated the crime of theft, as defined under § 5-36-103 (a)(1). Such an argument is contrary to case law.

In Jarren v. State, 265 Ark. 662, 580 S.W.2d 460 (1979), this court affirmed Jarrett’s conviction for theft of property where the evidence showed that he loaded a shopping cart with meat, rolled it into the storeroom where the public was not supposed to be, and began putting the meat into sacks that he had stuck in the back of his pants. Jarrett was stopped while he was loading the meat into sacks in the store, and therefore he was arrested before leaving the store with the meat. In affirming the conviction, this court stated that it was reasonable for the trial judge to believe that, if Jarrett had meant to buy the large quantity of packaged meat, he would have taken it to the check-out counter. Further, this court held that the trial judge could infer from the evidence that Jarrett was exercising unauthorized control over the property with the intention of taking it out of the store in sacks, as if it. had been paid for. In fact, the court stated that no other explanation for Jarrett’s conduct is readily apparent. See also White v. State, 271 Ark. 692, 610 S.W.2d 266 (Ark. App. 1981).

The rule and holding in Jarrett are controlling here. Witnesses testified that they saw the appellant and Turner break into Cruise’s apartment. The men who were called to help said that they saw the appellant with a television and stereo in his hands while he was standing in Cruise’s living room. The appellant had removed the television from where the victim kept it in the apartment and was obviously ready to remove it from the premises. In fact, Turner, his accomplice, testified that he and the appellant planned on stealing items from the apartment. His story was sufficiently corroborated by the men who testified that when they entered the Cruise apartment, they discovered the appellant holding the television. Definitely, the jury could have reasonably inferred from the evidence that the appellant had the intent of depriving the victim of her television, and as shown by the holding in Jarrett, actual removal of the items from the apartment is not necessary to show theft.

Even if we had found merit in appellant’s foregoing contention, he was clearly guilty as an accomplice. This court has repeatedly held that there is no distinction between the criminal responsibility of an accomplice and the person who actually commits the offense. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981); see also Ark. Code Ann. §§ 5-2-402(2) and2-403(a) (1987). The trial court here instructed the jury as to accomplice liability.

The evidence reflects the appellant accompanied Turner when they unlawfully entered Cruise’s apartment. Turner admitted that upon entering the apartment, they intended to steal items of property. Turner also admitted he had a lighter and watch belonging to Cruise when he left her premises and was subsequently apprehended. Turner was clearly guilty of theft under these circumstances and, at the very least, the evidence shows the appellant actively planned and participated in Turner’s commission of the crime.

We affirm.


author: Otis H. Turner, Justice.

text:
    Kenneth Wayne PICKETT v. STATE of Arkansas
    CR 89-230
    783 S.W.2d 854
    Supreme Court of Arkansas
    Opinion delivered February 12, 1990

      Albert R. Hanna, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

The appellant, Kenneth Wayne Pickett, was charged with driving under the influence of intoxicants, third offense. He subsequently moved to dismiss on the basis that, in his prior convictions, the record did not reflect that he had waived his right to counsel or that he had been advised of his rights and the consequences of a guilty plea. The motion was denied. The appellant also moved to strike the previous convictions, citing as justification the same basic reasons stated in his previous motion to dismiss. The motion to strike was apparently never acted upon.

On March 28,1989, the appellant filed a motion to suppress the evidence of the prior convictions, again reciting the same grounds advanced in the motion to dismiss and the motion to strike. On the same date, the appellant, obviously intending to take advantage of Arkansas Rule of Criminal Procedure 24.3(b), entered a written plea of nolo contendere, “reserving the right . . . on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence.”

From a fine of $2,000 and costs, a one year jail term with all but 90 days suspended subject to the appellant’s compliance with the balance of the court rule, a two-year suspension of driving privileges and completion of an alcohol treatment and education program, this appeal is taken.

We find that the issue raised is jurisdictional and that the appeal is not permitted under the rules and the prior decisions of this court.

The general rule in Arkansas is that, in the language of Ark. Code Ann. § 16-91-101 (c) (1987), “there shall be no appeal from a plea of guilty or nolo contendere.” See Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987), where the court plainly stated, “There is no right to appeal from a guilty plea.”

The Rules of Criminal Procedure, amended by a per curiam in July, 1987, with an effective date of October, 1987, provides an exception to the statutory ban. Rule 24.3(b) provides:

With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

In Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989), this court interpreted Rule 24.3(b), and the holding of the Jenkins case is clear in its application here. In Jenkins, the appellant was charged with DWI, fourth offense, and pled not guilty. Before trial, he sought by motion to suppress the use of a prior DWI conviction due to the lack of a proper waiver of counsel. In ruling on the motion, the trial court found that the waiver of counsel was valid. Subsequently, Jenkins pled guilty and invoked the provisions of Rule 24.3(b), believing that he was afforded the right to appellate review of the trial court’s denial of his motion to suppress the prior conviction.

In Jenkins this court addressed the question “whether or not the matter is properly before this court” and determined that “the judgment appealed is not encompassed within Rule 24.3(b).” The rule’s reference to a “pretrial motion to suppress evidence” places the emphasis on the evidence instead of the motion. “A motion to suppress evidence,” Chief Justice Holt wrote, “presupposes that the evidence was illegally obtained. Here, we are simply dealing with the admissibility of evidence, rather than ‘illegally obtained’ evidence.”

It is clear that the question now before the court is jurisdictional and that the rules do not provide for an appeal following a plea of nolo contendere where the appeal challenges the admissibility of evidence as distinguished from evidence illegally obtained.

This appeal is dismissed.


author: Per Curiam.

text:
    Bilal Ali SALAM v. STATE of Arkansas
    RC 89-61
    783 S.W.2d 63
    Supreme Court of Arkansas
    Opinion delivered February 12, 1990

      David Hodges, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

For the reasons set out in Salam v. State, 300 Ark. 630, 781 S.W.2d 30 (1989), we remanded this case so the trial court could conduct an evidentiary hearing concerning whether the petitioner had waived his right to appeal his November 19,1981 conviction for attempted rape. The trial court has conducted its hearing and from the testimony elicited at that hearing, it found the petitioner had requested his counsel to appeal the November 19,1981 conviction, but for no good cause, the appeal was not perfected. The trial court further concluded that the petitioner never waived his right to appeal.

In view of the trial court’s findings and conclusions and the decisions entered by the United States Eighth Circuit Court and the United States Federal District Court of the Eastern District of Arkansas noted in our earlier per curiam, we grant the petitioner’s and state’s joint motion for a belated appeal. Having previously appointed Mr. David Hodges as petitioner’s counsel in this proceeding, we continue that appointment so he may represent petitioner in his appeal.


text:
    Michael SALAMO v. SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT
    RC 89-62
    783 S.W.2d 858
    Supreme Court of Arkansas
    Opinion delivered February 12, 1990

      Michael Salamo, pro se.

      Rudy Moore, Jr., P.A., for appellee.
   Per Curiam.

The appellee, Supreme Court Committee on Professional Conduct, moves to dismiss the appellant’s appeal, stating appellant failed to comply with Rules 3(e) and 6(b) of the Rules of Appellate Procedure. In sum, appellee asserts that, on October 25,1989, the appellant filed a notice of appeal containing a statement that he ordered a transcript when, in fact, he failed to order it. Appellee submits with its motion the court reporter’s affidavit, dated January 10, 1990, reflecting the appellant had never requested the transcript. Appellee’s executive director also avers appellant made no request for the transcript. The director further states that, by letter dated November 2, 1989, he had notified the appellant that it was appellant’s responsibility to order the transcript. While at one point in his reply to appellee’s motion, appellant suggests that a misunderstanding may have arisen as to whether he had requested the transcript in a telephone conversation he had with the director on October 23, 1989, appellant clearly states he ordered the transcript on January 15, 1990. This assertion is consistent with the court reporter’s affidavit dated January 10,1990, that no request had been made.

Appellant’s response to appellee’s motion to dismiss deals largely with his claims that he had never received notice of his former client’s complaint filed against him, nor did he receive notice of the appellee’s hearing on that complaint which was conducted before the appellee on September 9,1989. Bearing on appellee’s motion, appellant states that, in his telephone conversation with appellee’s director on October 23,1989, he asked the appellee to certify its entire case file so the file could be docketed with this court as a part of the record in this appeal. He needed the file information, he suggests, to make his constitutional and other arguments pertaining to the appellee’s failure to give him the required legal notice. Appellee in no way denies appellant’s claim that he directed his efforts to have appellee’s case file made a part of the record in this appeal.

In Hudson v. Hudson, 277 Ark. 183, 641 S.W.2d 1 (1982), we held it was fatal to an appeal when Ark. R. App. P. 3(e) was totally ignored by the appellant. We have, however, recognized that substantial compliance with the rule is sufficient. Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986).

Here, appellant timely filed his notice of appeal, stating he had ordered the transcript. From the pleadings and affidavits before us, appellant did not order the transcript from the reporter on or before filing the notice. See Ark. R. App. P. 6(b). Appellee’s director, by letter dated November 2, 1989, notified appellant that it was his responsibility to order and pay for the transcript. Again, he failed to do either, at least until January 15, 1990, on which date he claims he telephoned the court reporter and requested it. We note that, even if appellant’s January 15th request was made, it was only after the appellee filed its motion to dismiss appellant’s appeal on January 12,1990. We simply do not agree appellant’s actions show that he substantially complied with Rule 3(e). Therefore, we grant appellee’s motion to dismiss the appeal. As a consequence, we deny appellant’s petition for writ of certiorari to complete the record and his motion for extension of time.

Appeal dismissed.


text:
    Walter STRODE v. STATE of Arkansas
    RC 89-80
    783 S.W.2d 859
    Supreme Court of Arkansas
    Opinion delivered February 12, 1990
    Pro Se Petition for Writ of Certiorari granted.

      Walter Strode, for petitioner.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for respondent.
   Per Curiam.

The petitioner Walter Strode was found guilty by a jury of theft of property on July 19,1988. (For some reason not clear from the record, the judgment was not entered until February 25, 1989.) On August 18, 1989, Michael R. Salamo, the retained attorney who represented the petitioner at trial, filed a timely notice of appeal and designation of record. The record was never lodged on appeal. Petitioner has now lodged a partial record and filed a pro se petition for writ of certiorari in which he requests that the record be brought up for the purposes of a belated appeal. He contends that Salamo abandoned the appeal even though Salamo knew that he was free on appeal bond and desired to perfect an appeal. Petitioner now claims to be indigent. On September 18,1989, our Committee on Professional Conduct suspended for two years Salamo’s license to practice law.

The petition before us is in the nature of a motion for rule on the clerk and request for a writ of certiorari since there was a timely notice of appeal filed in this case. We grant the petition to proceed on appeal because the failure of counsel to perfect an appeal where a defendant requests an appeal amounts to the denial of the defendant’s right to effective assistance of counsel. Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). The filing of the notice of appeal in this case clearly indicates that the defendant expressed his desire to appeal. As counsel abandoned his client, his representation was ineffective.

Petitioner has alleged that he is indigent and filed with this court the appropriate affidavit in support of the assertion of indigency. As the state has not taken issue with the claim of indigency, we will appoint counsel to represent the petitioner on appeal. A writ of certiorari to bring up the record shall issue and the clerk is directed to lodge the record when it is received.

A copy of this opinion is being forwarded to the Arkansas Supreme Court Committee on Professional Conduct.

Petition granted.


text:
    Charles SULLIVAN v. STATE of Arkansas
    RC 89-78
    784 S.W.2d 155
    Supreme Court of Arkansas
    Opinion delivered February 12, 1990

      Pro Se Motion for Rule on the Clerk and Motion for Appointment of Counsel denied.

      Charles Sullivan, for petitioner.

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

The petitioner Charles Sullivan pleaded guilty to aggravated robbery in 1988. In 1989, he filed in the trial courta pro se petition for post-conviction relief pursuant to Criminal Procedure Rule 37. The petition was denied, and the petitioner filed a timely pro se notice of appeal. The record was not tendered to this court within the ninety days provided by Rule 5 of the Arkansas Rules of Appellate Procedure. Petitioner has now filed a motion for rule on the clerk and a motion for appointment of counsel. In the motion for rule on the clerk the petitioner asserts that the circuit clerk must assume fault for the late tender of the record because she failed to forward the record to this court or to him within time for him to lodge the record in accordance with the rules of procedure. He contends that as an incarcerated indigent layman, he did not have the means to obtain and submit the transcript.

The motions are denied. All litigants, including those who proceed pro se, must bear responsibility for conforming to the rules of procedure or demonstrating good cause for not doing so. Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986). It is not the duty of the circuit clerk to perfect an appeal. The appellant has the responsibility for filing a timely notice of appeal and requesting in a letter to the clerk that the record be prepared and transmitted to either the appellant or to the clerk of this court. This request is not part of the notice of appeal. If the pro se appellant desires appointment of counsel, he must file a separate motion for counsel with the notice of appeal. The appellant here filed a lengthy notice of appeal styled “Notice of Appeal and Motion for Designation of Record” which contained in its body a request for appointment of counsel and a request that the record be transmitted to him, to this court and to his attorney if one was appointed to represent him. Clerks and judges are not required to sift through a notice of appeal or other documents to decipher whether any hidden request or motion is contained in it. A litigant’s failure to act in accordance with the prevailing rules of procedure will not be excused solely on the ground that he was acting pro se. Likewise, the fact of incarceration does not excuse a prisoner from complying with the rules. See Peterson v. State, supra.

Motions denied.


text:
    John R. WORTHINGTON v. STATE of Arkansas
    RC 89-73
    786 S.W.2d 117
    Supreme Court of Arkansas
    Substituted order delivered March 26, 1990.

      T.B. Patterson, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
    Petitioner, John R. Worthington, is attempting to appeal from a conviction of first offense DWI.
   Worthington has requested that the clerk accept the record tendered as a result of his notice of appeal. The clerk has refused to file the record because it was not tendered in conformance with Ark. R. App. P. 5(a) and 5(b).

Rule 5(a) provides in pertinent part as follows:

The record on appeal shall be filed with the clerk of the Arkansas Supreme Court and docketed therein within 90 days from the filing of the first notice of appeal, unless the time is extended by order of the trial court ....

Rule 5(b) provides in pertinent part as follows:

In cases where there has been designated for inclusion any evidence or proceeding at the trial or hearing which was stenographically reported, the trial court, upon finding that a reporter’s transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings stenographically reported, may extend the time for filing the record on appeal, but the order of extension must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order ....

(Emphasis added.)

The relevant dates in this case are as follows:

May 9, 1989 Judgment
June 7, 1989 Notice of appeal
September 7, 1989 Order granting extension
October 24, 1989 Record tendered to clerk

The time period between the notice of appeal and the order granting an extension of time for the filing of the record is 92 days; consequently, Worthington’s counsel has not complied with the proper procedure for filing the record.

We have held that where a defendant’s attorney admitted that the record was tendered late due to his miscalculation of the time for filing the record, then such error, admittedly made by the attorney for a criminal defendant, was good cause to grant the motion for rule on the clerk. Robbins v. State, 287 Ark. 199, 697 S.W.2d 118 (1985). Conversely, we have stated that where the attorney does not admit fault on his part for the failure to timely file a transcript, then good cause is not shown for granting a motion for rule on the clerk. West v. State, 297 Ark. 392, 763 S.W.2d 69 (1988).

Worthington’s counsel states that he “will promptly submit to the Court an affidavit accepting responsibility for the failure to timely file the transcript . . . upon the ruling of the Court that will allow such pleadings to be effective.” However, this statement by Worthington’s counsel does not admit fault for the untimely filing of the record.

Effective assistance of counsel is a fundamental requirement which cannot be denied any person accused or convicted of a serious crime, and failure of the trial counsel to perfect an appeal of a conviction of a serious crime amounts to a denial of the defendant’s right to effective assistance of counsel. Chandler v. State, 297 Ark. 432, 762 S.W.2d 796 (1989).

Ark. Code Ann. § 5-65-103 (1987), addresses the offense of DWI:

(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath, or other bodily substance.

Ark. Code Ann. § 5-65-111 (1987) provides for the prison term, in regard to the first offense, as follows:

(a) Any person who pleads guilty, nolo contendere, or is found guilty of violating § 5-65-103 may, for a first offense, be imprisoned for no less than twenty-four (24) hours and no more than one (1) year, except that the court may order public service in lieu of jail, and, in such instance, the court shall include the reasons therefor in its written order or judgment.

Worthington was convicted of driving while intoxicated, first offense, and “sentenced to serve two days in the White County Detention Center, with credit for two days already served, and the Defendant shall attend mandatory DWI School as required by Arkansas law.”

In Alexander v. State, 258 Ark. 633, 527 S.W.2d 927, we held that an uncounseled municipal court conviction involving only a fine and valid for that purpose cannot be collaterally used to revoke a suspended sentence since the effect is the actual deprivation of a person’s liberty without the guiding hand of counsel; although, it may be shown that the facts giving rise to the municipal court conviction are sufficient themselves to revoke a suspended sentence.

In Alexander v. State, supra, we stated:

In considering the right of an indigent to the appointment of counsel in misdemeanor cases, the Untied States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25 (1972), commented as follows:
We must conclude, therefore, that the problems associated with misdemeanor and petty offenses often require the presence of counsel to insure the accused a fair trial. MR. JUSTICE POWELL suggests that these problems are raised even in situations where there is no prospect of imprisonment. Post, at 48. We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail. And, as we said in Baldwin v. New York, 399 U.S., at 73, “the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or ‘petty’ matter and may well result in quite serious repercussions affecting his career and his reputation.”
We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.

In addition, it was held in Scott v. Illinois, 440 U.S. 387 (1979), that:

The Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.

Although Worthington’s pleadings do not establish whether his counsel was retained or appointed, the Sixth Amendment’s right to counsel applies to both indigent defendants and to defendants who retain counsel. See Cuyler v. Sullivan, 446 U.S. 335 (1980).

The Sixth Amendment right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). Inadequate assistance does not satisfy the Sixth Amendment right to counsel made applicable to the States through the Fourteenth Amendment. Cuyler v. Sullivan, supra. Accordingly, Worthington’s sentence of two days imprisonment entitled him to the effective assistance of his counsel.

In this case, Worthington’s counsel did not comply with the proper procedure for filing the record in his client’s appeal, in that he tendered the record two days after the filing deadline, Ark. R. App. P. 5(a) and 5(b); as a result, his actions constitute ineffective assistance of counsel. See Chandler v. State, supra. Consequently, in view of the holdings in Scott v. Illinois, supra, Alexander v. State, supra, and Chandler v. State, supra, we find that Worthington’s motion for rule on the clerk should be granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Debra BREWER, Guardian of the Estates of Jerrod Roy Brewer and Amber Tomi Brewer, Minors v. Sharon Brewer LACEFIELD, Personal Representative of the Estate of Roy Milton Brewer, Deceased
    88-218
    784 S.W.2d 156
    Supreme Court of Arkansas
    Opinion delivered February 20, 1990

      Steven R. Davis, for appellant.

      John Hainen; and Lavender, Rochelle, Barnette & Dickerson, by: G. William Lavender, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal arises from an order of distribution of the proceeds of a wrongful death action, as does its companion case decided today, Jones v. Jones, 301 Ark. 367, 784 S.W.2d 161 (1990). Jones is the subject of a separate opinion because its results are different.

On July 5,1984, Roy Milton Brewer died in a motor vehicle accident near Ashdown, Arkansas. Herman Edwin Jones, William R. Gilham, and William T. Mills were also killed in the accident. Brewer was survived by his widow, appellee Sharon Brewer Lacefield, and two natural children by a previous marriage, Jerrod Roy Brewer and Amber Tomi Brewer. The probate court appointed the widow as personal representative of his estate.

The widow entered into a contingent fee contract with attorneys John Hainen of DeQueen and William Lavender of Texarkana, Arkansas, to pursue a claim for wrongful death, whereby she agreed to pay them one-third of all money and property collected. Brewer’s ex-wife, appellant Debra Brewer, contracted with Jeb McNew of Nocona, Texas, and Steven R. Davis of North Little Rock, Arkansas, to represent her children in the wrongful death action. This contingent fee contract provided for the attorneys to receive one-third of all proceeds from the action.

Attorneys Hainen and Lavender filed suit on behalf of the personal representative against the driver of the truck, the trucking company, the leasing company, and the truck manufacturer, alleging that they were negligent. This case, along with an action filed by the personal representative of the estate of Herman Edwin Jones, was tried to a jury in federal court in Texarkana, Arkansas, from February 29 to March 3, 1988, with counsel for both parties actively participating in the trial.

The jury exonerated the manufacturer but found the other three defendants liable and awarded damages of $304,000: $4,000 to the estate and $100,000 each to the widow and the two natural children. The estate of Herman Jones and the beneficiaries obtained verdicts in the amount of $359,000.

The defendants had liability insurance of $500,000 to cover the accident. Prior to trial, the carrier settled with the estates of the other two men killed in the accident. The sum of $250,000 in insurance proceeds remained available for distribution to the beneficiaries of the Jones estate and the Brewer estate.

On April 18,1988, the personal representative of the Brewer estate filed a report of litigation and prayer for distribution in the Probate Court of Sevier County. Out of the proceeds available for distribution ($114,630.46), she proposed that Lavender and Hainen be reimbursed for litigation expenses in the amount of $1,916.87 and be paid $37,567.45 pursuant to their contingent fee contract. In addition, she stated that the judgment of the federal court awarded the estate $4,000. Out of this amount, she proposed payment of a claim by Henry C. Morris in the amount of $200; a claim by Southern Clinic in the amount of $841; and bills incurred by her for funeral expenses and travel in the amount of $2,959. Finally, she proposed that she and the children share equally in the balance remaining and recover $23,715.38 each.

The Brewer children, through their independent counsel, filed a separate petition for distribution and brief in support thereof. They objected to the personal representative’s petition for distribution in that it made no allowance for attorneys’ fees to be paid to the children’s independent counsel; to the personal representative’s proposal that the estate receive its entire $4,000 verdict, which was more than its pro rata share; and to her proposal that the claim of Henry Morris and Southern Clinic be paid out of the portion of the recovery attributable to the Brewer children. They asked that their counsel, pursuant to their contingent fee contract, receive one-third of the portion of the recovery payable to them (the children) and that the court only distribute to Hainen and Lavender one-third of the portion of the recovery payable to Sharon Brewer (Lacefield) and the estate.

After hearing oral argument, the probate court entered its order of distribution, predicated upon the personal representative’s proposed order. From this order, the appellant appeals.

For reversal, the appellant first contends that the probate court erred in failing to award a proportionate share of attorneys’ fees to independent counsel retained by her for the decedent’s minor children.

SELECTION OF ATTORNEYS AND FEES

Ark. Code Ann. § 16-62-102(b) (1987) provides that every wrongful death action shall be brought by and in the name of the personal representative of the deceased person. If there is not a personal representative, then the action shall be brought by the heirs at law of the deceased person. The wrongful death code provisions do not create an individual right in any beneficiary to bring suit. Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985). However, the personal representative, in bringing suit for wrongful death, acts only as a trustee of conduit, and any proceeds recovered are for the benefit of the beneficiaries and not for the estate. Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961); Ark. Code Ann. § 16-62-102(f) (1987).

It is the duty of the personal representative, not the beneficiaries, to choose counsel to pursue a wrongful death claim pursuant to our wrongful death code provisions. See Cude, supra.

In Cude, this court did indicate in closing dicta that a beneficiary may have her own counsel in a wrongful death case in order to protect her interests. However, we declined to address whether such counsel would be entitled to fees on a portion of the judgment or settlement since it was not raised.

With this issue now squarely before us, we hold that a beneficiary’s attorney is not entitled to fees on a portion of wrongful death proceeds attributable to the beneficiary.

In short, a probate court has no jurisdiction to award attorneys’ fees for services rendered to an individual beneficiary. Paget v. Brogan, 67 Ark. 522, 55 S.W. 938 (1900). See also Croft v. Clark, 24 Ark. App. 16, 748 S.W.2d 149 (1988).

Appellant cites two cases in support of her claim that her attorneys are entitled to fees, Owens v. Gunther, 75 Ark. 37, 86 S.W. 851 (1905), and Greenlee v. Rowland, 85 Ark. 101, 107 S.W. 193 (1908). However, neither case is pertinent to the issue before us.

In Owens, this court simply held that where a guardian claims an interest in his wards’ property and a guardian ad litem is appointed to defend the wards’ interests, the attorneys appearing on behalf of the wards are entitled to fees out of the wards’ estates. In Greenlee, this court held that where a minor employs an attorney to defend him in a suit brought by his guardian, the minor’s estate is liable for the fee. The issue here is whether the attorneys can recover their fees from the wrongful death proceeds attributable to the children.

Granted, the beneficiaries may prefer to have independent counsel to protect their interests. However, as long as our code provisions provide that the personal representative is the party to bring the action, that party has the absolute right to choose counsel for that purpose. Should the personal representative or chosen counsel fail to provide adequate representation, application can be made to the probate court to either not approve or disallow the contracts entered into by the representative. In fact, a representative can even be removed if the court finds him or her unsuitable. Ark. Code Ann. § 28-48-105 (1987).

In sum, the beneficiaries are free to select counsel to see that their interests are protected, however, they must bear this expense.

CONFLICT OF INTERESTS

Appellant also claims that the appellee’s attorneys cannot recover a fee since they represented conflicting interests.

Rule 1.7 of the Model Rules of Professional Conduct provides in pertinent part:

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests ....

This court has not addressed whether and under what circumstances a conflict of interest exists by virtue of simultaneous representation by an attorney of both the personal representative and the beneficiaries in a wrongful death suit.

Other courts have addressed this issue. These authorities make it clear that no conflict of interest exists simply by virtue of simultaneous representation of both a personal representative and the surviving relatives. Hurt v. Superior Court of Arizona, 124 Ariz. 45, 601 P.2d 1329 (1979); Johnson v. Village of Libertyville, 150 Ill. App. 3d 971, 502 N.E.2d 474 (1986). Of course, under certain circumstances there may be a conflict. Johnson, supra.

In Johnson, the decedent’s surviving spouse, as personal representative, filed a wrongful death suit. However, in the complaint he did not include a count for loss of society by the decedent’s parents. The parents filed a motion to intervene, alleging that there was a conflict between their interests and those of the personal representative since his interest was in maximizing his degree of dependency and loss of consortium while minimizing their claim for loss of society.

The court held the parents had a right to intervene since it was clearly shown that the personal representative had acted in a manner indicating that he would not adequately represent the interests of the parents. In so holding, the court stated:

[T]he mere fact that the administrator as surviving spouse had a personal interest in the outcome of this Wrongful Death action is not so conflicting, nor an interest so adverse to that of the petitioners that both cannot be adequately represented by the plaintiff____[W] e do not find that there is a conflict of interest simply because the heirs and the personal representative might have interests that conflict in the wrongful death award. In other words, intervention is permitted here only because there is positive proof that the next of kin will not be adequately represented.

In Roberts v. Gateway Motel of Grand Rapids, Inc., 145 Mich. App. 671, 377 N.W.2d 895 (1985), the court held that a new trial was not required on the ground that the interests of the decedent’s mother, the personal representative, conflicted with those of the decedent’s natural father in that: (1) the personal representative attempted to enhance the award of damages by describing the father’s relationship with his son in favorable terms, and (2) counsel for the personal representative never called the conflict to the court’s attention before trial, so that the court could resolve the problem in advance of trial.

As in Roberts, the appellant did not call to the probate court’s attention before trial any conflicts between the personal representative, her counsel, and the beneficiaries or counsel for the beneficiaries. In fact, there was not even a hint of any antagonism between the parties until it came time to distribute the proceeds of the federal court trial to the beneficiaries.

Appellant claims that a conflict of interest is apparent from the personal representative’s recommended distribution of the proceeds. The personal representative proposed that the beneficiaries (the personal representative and the Brewer children) each be paid $23,715.38 of their $100,000 verdicts, and that the estate be paid its verdict of $4,000 in full.

We see no conflict resulting from this plan of distribution so adverse to the children’s interest that they could not be adequately protected by the personal representative. In fact, she suggested that she, as a beneficiary, receive the same share as the children.

Appellant also alleges that a conflict of interest is apparent in that in October 1984, approximately three and one-half years before the trial of the wrongful death action, John Hainen, the attorney chosen by the personal representative, “prevailed on Mrs. Debra Brewer to sign away her children’s interest in the State’s death benefit” payable to both Sharon Brewer (Lacefield) and the children.

This allegation is unsupported by the evidence in the abstract. The abstract does reflect that Debra Brewer sought to waive her children’s claim to death benefits provided by Ark. Stat. Ann. § 12-2348 (Repl. 1979), currently Ark. Code Ann. § 21-5-705 (1987). The order and findings of fact of the State Claims Commission reflect that it split $10,000 in benefits equally between Sharon Brewer (Lacefield) and the children. However, there is no convincing evidence that Hainen “prevailed on Mrs. Debra Brewer” to sign away her children’s interest in the death benefits.

In sum, the appellant has not shown positive proof that the children’s interests were not adequately represented by the personal representative. Furthermore, she voiced no objection to the personal representative’s representation of the children’s interest or selection of counsel until after the proposed order of distribution was filed, and she made no attempt to remove the personal representative pursuant to Ark. Code Ann. § 28-48-105 (1987).

ERROR IN DISTRIBUTION OF FUNDS

Appellant also asserts that the probate court erred in awarding a disproportionate amount of the funds recovered to the estate of Roy Milton Brewer. We agree.

The beneficiaries were each awarded $100,000 of the total verdicts of $304,000, or 98.68421 % of the verdicts; the estate was awarded $4,000, or 1.31579% of the total verdicts. Insurance proceeds in the amount of $114,630.46 were available for distribution.

All parties agree that litigation expenses in the amount of $1,916.87 should be deducted from this amount, leaving $ 112,713.5 9. Appellee’s attorneys get 3 3.3 3 % of $ 112,713.5 9, or $37,567.44. This leaves $75,146.15 available for distribution.

The probate court awarded the estate its entire jury verdict of $4,000, while reducing each beneficiary’s share to $23,715.38. This was error. Monies due beneficiaries cannot be taken to pay the debts of the estate. Dukes, supra.

The beneficiaries should receive 98.68421 % (their percentage of the total verdicts) of $75,146.15, which is $74,157.38, or $24,719.13 each. The estate should receive 1.31579% (its percentage of the verdicts) of $75,146.15, or $988.77.

In closing, we do note that Ark. Code Ann. § 16-62-102(e) (1987) provides that no part of any wrongful death recovery “shall be subject to the debts of the deceased or become, in any way, a part of the assets of the estate of the deceased person.” However, appellant does not argue on appeal, pursuant to this provision, that none of the proceeds of the wrongful death action should have been distributed to the estate.

Affirmed in part; reversed in part.


text:
    Herman Edwin JONES, Jr., Angela Jones, Carolyn Reynolds, Guardian of the Estate of Vicki Jones, and Debbie Roller, Guardian of the Estate of Trey Jones v. Terrie Dean JONES, Personal Representative of the Estate of Herman Edwin Jones, Sr., Deceased
    88-219
    784 S.W.2d 161
    Supreme Court of Arkansas
    Opinion delivered February 20, 1990

      Wilson, Berry, Jorgenson & Fuqua; and Steven R. Davis, for appellants.

      John Hainen; and Lavender, Rochelle, Barnette & Dickerson, by: G. William Lavender, for appellees.
   Jack Holt, Jr., Chief Justice.

This appeal arises from an order of distribution of the proceeds of a wrongful death action and is the companion case to another case decided today, Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).

On July 5,1984, Herman Edwin Jones, Sr., died in a motor vehicle accident near Ashdown, Arkansas. Roy Milton Brewer, William R. Gilham, and William T. Mills were also killed in the accident. Jones was survived by his widow, Terrie Dean Jones, four natural children, and two stepchildren. The probate court appointed the widow as personal representative of his estate.

The widow entered into a contingent fee contract with attorneys John Hainen of DeQueen and William Lavender of Texarkana, Arkansas, to pursue a claim for wrongful death, whereby she agreed to pay them one-third of all money and property collected. About the same time, the mothers of the four natural children entered into contingent fee contracts with attorney Ken Fuqua of Dallas, Texas, to prosecute a claim against those persons responsible for the death of Herman Jones.

Attorneys Hainen and Lavender filed suit on behalf of the personal representative against the driver of the truck, the trucking company, the leasing company, and the truck manufacturer, alleging that they were negligent. This case, along with a wrongful death action filed by the personal representative of the estate of Roy Milton Brewer, was tried to a jury in federal court in Texarkana, from February 29 to March 3,1988, with counsel for both parties actively participating in the trial.

The jury exonerated the manufacturer but found the other three defendants liable and awarded damages of $359,000: $4,000 to the estate; $100,000 each to the widow and two minor natural children; and $15,000 each to two adult natural children; and $12,500 each to two stepchildren. Roy Brewer’s widow, his estate, and his children obtained verdicts in the amount of $304,000.

The defendants had liability insurance of $500,000 to cover the accident. Prior to trial, the carrier settled with the estates of the other two men killed in the accident. The sum of $250,000 in insurance proceeds remained available for distribution to the beneficiaries of the Jones estate and the Brewer estate.

On April 21,1988, the personal representative of the Jones estate filed a report of litigation and prayer for distribution in the Probate Court of Sevier County. Out of the gross pro rata recovery of $135,369.54, she proposed that attorneys Lavender and Hainen be reimbursed for litigation expenses in the amount of $ 1,926.68 and be paid, pursuant to the contingent fee contract, $44,476.52. In addition, she stated that the judgment of the federal court awarded the estate $4,000 for funeral expense, and that this amount should be paid to Griffin Funeral Home of Corsica, Texas. She also recommended that she and the two minor natural children receive $23,934.18 each; that the two adult natural children receive $3,590.13 each; and that the two stepchildren receive $2,991.77 each.

The four natural children, through their independent counsel, contested the proposed distribution. The children objected to the personal representative’s petition for distribution in that it made no allowance for attorney’s fees to be paid to the children’s independent counsel. They asked that counsel, pursuant to their contingent fee contract, receive forty percent (40%) of the portion of the recovery payable to them and that the court distribute to Hainen and Lavender one-third of the portion of the recovery payable to the widow, the stepchildren, and the estate.

After hearing oral argument, the probate court entered an order of distribution, predicated upon the personal representative’s proposed order. From this order, the two adult natural children and the mothers of the two minor natural children appeal.

For reversal, appellants contend that the probate court erred in failing to equitably divide the attorneys’ fees between counsel for the personal representative and counsel for the natural children.

As we held in the companion case decided today, counsel for individual beneficiaries is not entitled to attorneys’ fees out of a portion of wrongful death proceeds attributable to the beneficiaries.

Appellants also make the argument, as was made in the companion case, that the appellee’s attorneys cannot recover a fee since they represented conflicting interests. Appellants allege that a conflict of interest is apparent in that the personal representative was the fourth wife of the decedent and had been married to him less than six months at the time of his death; that “animosities coupled with greed that seems to surface in death and divorce, led the personal representative and her attorney, John Hainen, to seek benefits for herself to the exclusion of the natural children — from the federal government, the City of DeQueen, and the State of Arkansas”; that during trial, appellants offered to “submit the damage issue for all the Jones’ heirs in one lump sum, and split said sum on a 5°/so basis” but “[ajppellee refused, apparently on the premise that she felt she should get a larger share of the pie to the exclusion of the natural children”; and that appellee has resisted appellants’ request that their independent attorney receive compensation out of the wrongful death recovery.

Simply put, there is no evidence in the abstract that the personal representative or her attorneys took a position before trial or at trial so adverse to that of the natural children that they could not be adequately represented by the attorneys. All indications are that the representation of the children’s interests was excellent. In fact, the natural children were awarded sixty-four percent (64 %) of the total verdicts. Furthermore, appellants voiced no objection to the personal representative’s or counsel’s representation of their interests or to selection of counsel until after the proposed order of distribution was filed, and made no attempt to remove the personal representative pursuant to Ark. Code Ann. § 28-48-105 (1987).

Affirmed.


author: Darrell Hickman, Justice.

text:
    James CASH, Jr. v. STATE of Arkansas
    CR 89-158
    784 S.W.2d 166
    Supreme Court of Arkansas
    Opinion delivered February 20, 1990

      Roy C. Lewellen, for appellant.

      Steve Clark, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The appellant was charged with the rape and attempted murder of a two-year-old girl. The jury acquitted him of attempted murder but sentenced him to 40 years for rape. On appeal he contends the trial court erred in not granting his motion for a change of venue and that it was error to allow certain photographs to be admitted into evidence. Additionally, he claims that a state hospital report offered into evidence by the prosecution was hearsay and should not have been admitted. We affirm.

The trial judge denied a motion for a change of venue. The trial occurred a year after the crime. The appellant produced several affidavits which asserted “I do not feel [Cash] should be tried in Cross County.” He also presented the testimony of himself, his grandmother and one other witness that he could not receive a fair trial in Cross County. The state countered with testimony saying Cash could get a fair trial.

A criminal case may be removed to another county whenever it shall appear that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be held in that county. Ark. Code Ann. § 16-88-201 (1987). The decision of a trial court denying a motion to change venue will be upheld unless it is shown the court abused its discretion. O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988). The defendant has the burden of proving a motion to change venue should be granted. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986).

The appellant did not have a right to a jury totally ignorant of the crime. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Our review of the voir dire of the jurors in this case shows that, while some had heard of the case or read about it, none of those selected said they could not give the appellant a fair trial. Burnett v. State, 299 Ark. 553, 776 S.W.2d 327 (1989). What the appellant was entitled to and what he got in our judgment was a jury composed of persons who could and did decide the case on the testimony presented in court and not on the basis of news media coverage of the matter. Logan v. State, 299 Ark. 266, 733 S.W.2d 413 (1989).

The record reveals that, in the six months before this trial took place, there was no extraordinary media coverage or local gossip about the crime. Couple that with the voir dire of the jurors and it is plain that the appellant was tried by a fair and impartial jury.

The appellant contends that photographs of the victim and the crime scene should not have been admitted into evidence because they were cumulative, more prejudicial than probative, and intended only to inflame the passions of the jury.

Admissibility of photographs is in the sound discretion of the trial judge and his ruling will not be set aside absent an abuse of discretion. Even inflammatory photos can be admitted if they shed light on any issue or are useful to the jury. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989). Pictures may also be useful in corroboration of testimony or to show the nature and extent of wounds and the savagery of the attack. Williams v. State, 300 Ark. 84, 776 S.W.2d 359 (1989); Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987).

These photographs were useful for several reasons. First, they were graphic evidence that the child had been raped. They also depicted the bruises on the child and the bloody condition of the bed showing the savagery of the attack. It should be noted that the state was trying to prove both rape and attempted murder. We find no abuse of discretion in entering these photographs into evidence.

The appellant parenthetically argues that the photographs should not have been introduced because he did not contest his guilt but offered the affirmative defense of mental disease or defect. The state still had to prove the appellant engaged in the prohibited conduct. See AMCI 4009. A defendant cannot prevent the state from offering proof simply by conceding a fact. See Williams v. State, supra.

Finally it is argued that the trial court erred in admitting a 1988 state hospital report into evidence. Dr. Paul King, a psychiatrist and a witness for the appellant, had treated Cash in 1983 and diagnosed him as having a borderline personality disorder with suicidal intent. At trial, Dr. King said, “the diagnosis in the state hospital report was drug abuse and antisocial behavior.” He offered his opinion that the appellant was in an alcoholic blackout when he committed this offense. Dr. King said his diagnosis differed from that contained in medical records from the Arkansas State Hospital.

On cross-examination, the prosecutor attempted to introduce the state hospital report into evidence. The appellant objected. The court ruled that the report could be introduced under the hearsay exception in A.R.E. Rule 803(4). Later, on redirect, the appellant used the state hospital report to emphasize the fact that Dr. King had reviewed recent psychiatric reports in forming his opinion.

The trial judge reached the correct result, but used the wrong reasoning. He could have allowed the report into evidence on the ground that the appellant had waived his hearsay objection. See Aaron v. State, 300 Ark. 13, 775 S.W.2d 894 (1989); Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986). '

Affirmed.


text:
    Ronald Shane SMITH v. STATE of Arkansas
    RC 90-5
    784 S.W.2d 595
    Supreme Court of Arkansas
    Opinion delivered February 20, 1990

      Grisham A. Phillips, for appellant.

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

Ronald Shane Smith was convicted of second degree murder on August 11,1989. He filed his notice of appeal on August 24,1989. The record is due to be filed with our clerk on February 14, 1990.

Smith has filed a motion asking for permission, under A.R.Cr.P. Rule 37, to file a motion for a new trial with the trial court. The basis for the motion is newly discovered evidence consisting “of two statements made by a Frank Pilcher, which would indicate that parties other than the petitioner were responsible for the death of the victim in the instant case.”

The state points out that Rule 37 has been abolished, and the correct procedure for “bringing newly discovered evidence before a lower court after conviction but before affirmance is by petition for a writ of coram nobis. See Edgemon v. State, 292 Ark. 465, 730 S.W.2d 898 (1987); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984).” Since both Smith and the state misunderstand the law, some elaboration is in order.

First, Rule 37 was abolished in Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). Smith, who was convicted after Whitmore, is entitled to no relief under Rule 37.

Second, a motion for a new trial on the basis of newly discovered evidence must be filed with the trial court within 30 days from the entry of the judgment. Ark. Code Ann. § 16-91 -105 (1987); A.R.Cr.P. Rule 36.22. Smith’s motion is too late.

Third, we have not held that a writ of coram nobis can be granted on the basis of newly discovered evidence. Gross v. State, 242 Ark. 143, 412 S.W.2d 279 (1967); Penn v. State, supra. However, the language in Edgemon v. State, supra, does leave that impression and is in error in stating newly discovered evidence is a basis of relief under coram nobis. We said in Penn v. State, supra, newly discovered evidence was not a basis for a writ of coram nobis.

Fourth, the facts do not fit the exception made in Penn v. State, supra. Penn did not establish the writ of coram nobis. It merely expanded the remedy to include, as a grounds for relief, a confession by a third party to the crime after trial and before we have decided the case on appeal. That is all Penn holds.

In Penn we reviewed what a writ of coram nobis was and the existing grounds for such a writ.

Smith’s request fails for two reasons: (1) it is a motion for a new trial based upon newly discovered evidence and is filed too late, and (2) it does not enumerate any relief available under a writ of coram nobis. Finally, it is noted that the basis of relief is couched in conclusory language anyway and could not be the basis of relief under any procedure.

Motion denied.


author: Steele Hays, Justice.

text:
    CITY OF LITTLE ROCK v. Harold W. TIBBETT
    CR 89-182
    784 S.W.2d 163
    Supreme Court of Arkansas
    Opinion delivered February 20, 1990

      Mark Stodola, Little Rock City Attorney, by: Edward G. Adcock, Asst. City Attorney, for appellant.

      Ralph M. Cloar, Jr., for appellee.
   Steele Hays, Justice.

This attempted appeal by the City of Little Rock on behalf of the State of Arkansas must be dismissed for noncompliance with Rule 36.10 of the Arkansas Rules of Criminal Procedure.

Harold Tibbett, appellee, was charged with driving while intoxicated, having no liability insurance and failure to produce a driver’s license. He appealed from his convictions in the Little Rock Municipal Court and moved in circuit court to dismiss on the contention that the charges against him were brought only by the arresting officer, whose actions were invalid because of a failure to strictly comply with the Law Enforcement Standards Act, Ark. Code Ann. §§ 12-9-101—12-9-404 (1987). See Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989).

The arresting officer was a member of the Little Rock Police Department and the appellee had challenged the method of the psychological testing employed by the city. Specifically, he charged that under Specification S-7 of the Arkansas Commission on Law Enforcement Standard Regulations, the psychological evaluation required by Commission Regulation § 1002, must be performed by utilizing both an “actual interview and a psychometric evaluation. . . .” (Arkansas Law Enforcement Standards, Specification S-7, Procedure 1.) In this case, no personal interview had been conducted, the officer’s psychological evaluation had been performed only through a written examination.

Tibbett argued that the failure to comply with Specification S-7 was a lack of strict compliance with the commission regulations as required by our holding in Grable v. State, supra. The trial court found that absent an actual face-to-face interview, the officer had not satisfied the minimum standards for employment under the commission regulations. The trial court dismissed the charges and from that dismissal, the city brings this appeal.

We do not reach the merits of the city’s challenge as the appeal is not properly before us. Although the issue was not raised by either of the parties, we have a duty to raise it on our own as a matter of subject matter jurisdiction. State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988).

Generally speaking, the state has no right to appeal beyond that conferred by the Constitution or rules of criminal procedure. State v. Hurst, supra. Appeals by the state in criminal cases are allowed under A.R.Cr.P. Rule 36.10. The pertinent provisions under A.R.Cr.P. Rule 36.10 read:

(b) Where an appeal, other than an interlocutory appeal, is desired on behalf of the state following either a misdemeanor or felony prosecution, the prosecuting attorney shall file a notice of appeal within thirty (30) days after entry of a final order by the trial judge.
(c) When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.

The rule plainly requires that the prosecuting attorney, after filing a notice of appeal, submit a transcript of the trial record to the attorney general and that the attorney general, after being satisfied that error has been committed and that the correct and uniform administration of criminal law requires review, may take the appeal by filing the record with this court. Nothing in the record indicates that these steps were taken in conjunction with the attorney general. Rather, the record reflects this appeal was handled by the city completely independent of the attorney general’s office.

We held in Tipton v. State, 300 Ark. 211, 779 S.W.2d 138 (1989), that the provisions of the rule dealing with the correct and uniform administration of criminal law were jurisdictional. We have the same view of the provisions requiring that the appeal be taken by the attorney general.

As we previously stated, the state has no right to appeal except as conferred by the constitution or rule of criminal procedure, and the language of A.R.Cr.P. Rule 36.10(c) is not only clear and explicit, it is mandatory. See Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989); see also Warren, Tax Ass’r v. Wheatley, 225 Ark. 901, 286 S.W.2d 334 (1956). It is equally clear there are significant policy reasons to hold the requirement jurisdictional. See Maxwell, supra; Warren, supra.

Appeal dismissed.


text:
    David FRYAR d/b/a Fryar’s Transmission Service v. Ruth K. SANDERS
    89-230
    784 S.W.2d 168
    Supreme Court of Arkansas
    Opinion delivered February 20, 1990

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Jacob Sharp, Jr. and Brian Allen Brown, for appellant.

      Stephany Ruth Slagle, for appellee.
   Steele Hays, Justice.

By this appeal appellant asks us to reverse the trial court for permitting the jury to award damages for loss of use of a completely destroyed automobile. We think the issue was properly submitted to the jury, and accordingly, we affirm.

Ruth Sanders, appellee, brought this action against David Fryar, d/b/a Fryar’s Transmission Service, appellant, for the fair market value and loss of use of her 1982 Subaru automobile. The vehicle was totally destroyed on June 11, 1987, while being test driven by the appellant following the installation of a new transmission. The jury awarded Ms. Sanders $4,200 for the value of the vehicle and $2,152.60 for loss of use, evidently accepting her testimony that she had asked appellant about a rental car and he told her to go and rent a car, that she waited some two and one half weeks for the appellant “to do right about my car” before renting one for $20 per day. She said that although she had a second car it was in the repair shop with engine trouble, that she had two jobs and a daughter in college, had visited Subaru dealers in Little Rock, Fayetteville, Benton, and Malvern, but could not get credit and had finally bought a 1978 Oldsmobile from a friend for $100 down and $10.0 per month.

Prior to the decision in Sharp v. Great So. Coaches, Inc., 256 Ark. 773, 510 S.W.2d 266 (1974), Arkansas had long adhered to the view that damages for the loss of use of a vehicle during repairs were not recoverable. Madison Smith Cadillac Co. v. Wallace, 181 Ark. 715, 27 S.W.2d 524 (1930). By 1972 Arkansas was the only state committed to that position. Jones v. Herrin, 252 Ark. 837, 481 S.W.2d 362 (1972). That rule was changed abruptly in Sharp v. Great So. Coaches, supra, and two years later the legislature effectively preempted our holding by the passage of Act 643 of 1975 [Ark. Code Ann. § 27-53-401 (1987)] which reads in full:

In all cases involving damage to motor vehicles, the measure of damages shall be the difference between the value of the vehicle immediately before the damage occurred and the value after the damage occurred, plus a reasonable amount of damages for loss of use of the vehicle.

Appellant contends that the rule should not apply when a vehicle is totally destroyed, citing Annot., Recovery for Loss of Use of Motor Vehicle Damaged or Destroyed, 18 A.L.R.3d 497 (1968), which lists a majority of states as having taken that position. We concede as much, but note that even among those states so listed, some allow recovery for loss of use for a reasonable time until it can be determined whether the vehicle is repairable, id. § 8, and others permit recovery for loss of use until a destroyed vehicle can be replaced. Id. § 9. Yet the rule appellant would have us adopt would make no allowance for special circumstances. It would simply exclude damages for loss of use where the vehicle was damaged beyond repair.

We decline that invitation, if for no other reason than because it would require that we read into the 1975 statute language which the legislature did not include. The statute makes no mention of loss of use being limited to vehicles which are only partially damaged, nor does it purport to exclude recovery when a vehicle is totally destroyed, or limit its application to commercial vehicles. The act merely declares that “in all cases involving damage to motor vehicles” the measure will be the before and after value, “plus a reasonable amount of damages for loss of use of the vehicle.” [Our emphasis.] We find that language clear and unambiguous and consider it our duty to apply it without adulteration.

As an alternative argument, appellant asks that should we determine that the appellee is entitled to some loss of use, we limit the amount to the rental value of a comparable car for a reasonable time to seek a replacement for the destroyed vehicle. But without exploring the record, we think that issue was essentially what the jury was being asked to decide when instructed, as it was, in accordance with AMI 2210. The instruction told the jury to determine the amount it found to be reasonable for the plaintiffs loss of use of her automobile, and we cannot say the evidence was lacking to support the amount awarded.

AFFIRMED.

Glaze, J., not participating.


text:
    Judy HOLBIRD v. STATE of Arkansas
    CR 89-155
    784 S.W.2d 171
    Supreme Court of Arkansas
    Opinion delivered February 20, 1990

      R. Paul Hughes III, for appellant.

      Steve Clark, Att’y Gen., by: Kelly A. Procter, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Judy Holbird was convicted by a jury of attempted capital murder and of possession of a firearm by a felon, receiving a sixty year sentence for the attempted capital murder and a twelve year sentence for the possession of a firearm. She appeals from the judgment on the convictions. We find no error.

Appellant contends that the trial court erred in denying her motion for a mistrial when it was discovered early in the trial that one of the jurors was acquainted with a witness. During voir dire potential juror Cecil Moss failed to indicate that he knew any of the state’s witnesses. After the state concluded its direct examination of Detective David Caldwell of the Fort Smith Police Department, an eyewitness to the crime, the following exchange occurred:

JUROR:

I didn’t recognize the witness, but I have met this witness one time before.

THE COURT:

Is there anything about that that would keep you from being fair and impartial if you sit on this jury?

JUROR:

None, your Honor.
(Note: Juror indicated above is Rex [Cecil] Moss).

The trial judge determined that the juror had failed, innocently, to recognize Detective Caldwell during voir dire and, realizing his mistake, thought it important to inform the Court of their prior meeting. After questioning Moss, the judge ruled out any underlying bias and allowed him to remain on the jury.

In Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986), we held that the trial judge did not err in denying a mistrial when, after the trial had commenced, a juror told the trial judge that he knew the prosecutrix. The juror recalled meeting her a few years earlier when he repaired a typewriter at a bank where she worked. This juror also indicated to the trial judge that he could be a fair and impartial juror.

Similarly, Juror Moss, after the trial had commenced, remembered meeting Detective Caldwell on a prior occasion and promptly notified the court. Moss also told the trial judge that he could be a fair and impartial juror and nothing to the contrary was shown or even suggested. The determination of whether a mistrial is called for is within the sound discretion of the trial court. Brazel v. State, 296 Ark. 563, 759 S.W.2d 28 (1988). Reviewing the facts, we do not find that the trial judge abused his discretion.

The appellant next objects to the introduction of a .32 caliber bullet, state’s exhibit #9. Appellant contends the state failed to properly establish the bullet’s chain of custody. The state attempted to prove that the .32 caliber bullet removed from Detective Haney’s thigh was shot from the appellant’s .32 caliber handgun. The appellant, to the contrary, contended that Detective Haney accidentally shot himself with his own .38 caliber gun and the bullet removed from his leg was replaced with a .32 caliber bullet to frame the appellant.

The evidence at trial indicates that Nurse Jean Simpson, Operating Room Supervisor for Sparks Regional Medical Center, was in the operating room when the bullet was removed from Detective Haney’s thigh. Nurse Simpson testified that Dr. Wikman removed the bullet, handed it to a surgical assistant, Larry Bray, and Bray placed the bullet in a specimen cup, properly labeled. Larry Bray then gave the cup to Ms. Simpson who delivered the bullet to Detective Champion, in accordance with hospital policy. She identified the specimen cup at trial as identical to those used at the hospital.

On cross-examination, Ms. Simpson was asked if she were shown two or three different bullets whether she could identify the one she saw removed from Detective Haney’s leg. She replied that she knew the bullet removed was a large bullet but could not, if shown a bullet, unequivocally say it was the bullet removed from Detective Haney’s thigh. From this series of questions, the appellant asserts that the chain of custody of the bullet was broken.

The purpose in establishing the chain of custody is to prevent the introduction of evidence which is not authentic. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). To prove authenticity, the state must demonstrate that the evidence has not been altered in any significant manner. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). However, it is not necessary that every possibility of tampering has been eliminated; it is only necessary that the trial judge, in his or her discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979). Here, the trial judge found that the chain of custody was adequate. The only evidence of tampering was the appellant’s testimony. Any minor discrepancies in the chain of custody are for the trial court to weigh and, absent some evidence of tampering, the trial judge is accorded discretion and we will not reverse the ruling unless there is a clear abuse of discretion. Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989). We find no abuse of discretion here.

The appellant contends that the trial court erred in admitting the testimony of Ronald Anderjack, the state’s firearm expert. However, the appellant’s brief fails to present either authority or persuasive reasoning on this point, therefore, we need not address this issue. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

AFFIRMED.


text:
    Steve RUSSAW v. STATE of Arkansas
    CR 89-209
    784 S.W.2d 170
    Supreme Court of Arkansas
    Opinion delivered February 20, 1990
    Pro Se Rule 37 Petition granted.

      Petitioner, Pro Se.

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

The petitioner Steve Edward Russaw was convicted of first degree battery and sentenced to ten years imprisonment and fined $10,000. After his jury trial, he requested that, instead of the fine, the trial court sentence him to another year of commitment to be served consecutively to the ten year sentence. The trial court first considered the request but then ruled that since his family indicated that they could raise that amount of money for an appeal bond, he should pay the fine which the jury had recommended. The conviction was affirmed by the Arkansas Court of Appeals in an opinion not designated for publication. Russaw v. State, CACR 88-289 (August 23,1989). The petitioner now seeks permission to proceed in circuit court for post-conviction relief.

The petitioner alleges that on October 4,1989, after his conviction was ¿(firmed, he was taken before the trial court where the trial court withdrew the $10,000 fine and imposed a one year sentence to be served consecutively to the first ten year sentence. The petitioner argues that the court was acting without its jurisdiction to impose two sentences for the same crime and that he was denied a fair trial because he was not represented by counsel for the October 4 hearing. The hearing does not appear in the transcript. Since there is no certified record from which we can determine whether the petitioner has raised an issue cognizable under Rule 37, we grant him permission to proceed in circuit court with a petition limited to the issue of whether the trial court had jurisdiction to modify the sentence once it had been put into execution. See Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984).

Petition granted.