Recent Posts by comp_import

In Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997) the supreme court reversed a conviction for possession of methamphetamine where the arresting officer described the seized substance as an off-white powder, and the forensic chemist described it as a tan, rock-like substance.

The chemist further testified that he would not have described the substance as an off-white powder and that it would not have changed colors.

The supreme court stated:

"In the case before us, Crisco hinges his contention of lack of authenticity on the fact that Officer Hanes's description of the drugs differed significantly from that of the chemist, Michael Stage, in color and consistency. In fact, the chemist admitted that he would not have described the substance as off-white powder. Crisco's point has merit. True, there was no obvious break in the chain of custody of the envelope containing the plastic bag or conclusive proof that any tampering transpired. Yet, the marked difference in the description of the substance by Officer Hanes and the chemist leads us to the conclusion that there is a significant possibility that the evidence tested was not the same as that purchased by Officer Hanes. See Munnerlyn v. State, supra, 264 Ark. 928, 576 S.W.2d 714 (1979). This is especially so when we consider that the drug involved is a readily interchangeable substance. Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996) Under these circumstances, where the substance at issue has been described differently by the undercover officer and the chemist, we believe the State was required to do more to establish the authenticity of the drug tested than merely trace the route of the envelope containing the substance. We hold that the trial court abused its discretion by receiving a substance into evidence that was not properly authenticated." (328 Ark. at 392, 943 S.W.2d at 584-585.)

In Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296 (1989), Tracy Cousins was injured at school when she was struck in the left eye by a rock which was thrown by a bush-hog mower pulled by a tractor. The tractor was driven by appellee L.D. Dennis who was mowing grass on the school grounds under the direction of the school maintenance supervisor. Tracy Cousins's father sued the Huntsville School District and L.D. Dennis alleging that their negligence caused his son's injury.

The supreme court in Cousins addressed the same issue that is raised in the present appeal -- whether the school district was required, pursuant to Ark. Code Ann. § 21-9-303, to insure the vehicle that was involved in the accident. Cousins argued that the tractor used by the school district was a motor vehicle within the meaning of Ark. Code Ann. § 21-9-303.

Cousins relied on Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984), where the Dardanelle School District was held liable for negligence of its employee who was using a tractor on a highway when it struck a motorcycle.

The supreme court was quick to dismiss Cousins's reliance on Thompson because the court never addressed the issue of whether a tractor is a motor vehicle under Ark. Code Ann. § 21-9-303. The Huntsville School District argued that the tractor is not a motor vehicle that is required to be insured under Ark. Code Ann. § 21-9-303.

The supreme court reasoned that a tractor is excepted from registration laws under Ark. Code Ann. § 27-14-703 (Repl. 1994) as an implement of husbandry. The supreme court held that the school district was not required to insure its tractor under Ark. Code Ann. § 19-10-303(a) because the vehicle was not required to be registered under Arkansas law.

The supreme court discussed its interpretation of the relevant statutes as follows:

In construing 21-9-303(a), it is tempting to conclude that since the General Assembly failed to mention the vehicle registration statutes, those registration laws do not apply and, thus, a political subdivision should insure every motor vehicle it owns, registered or not. Such a construction would be erroneous for several reasons. One reason is that the language in 21-9-303(a) specifically refers to the entire Motor Vehicle Responsibility Act, which, as we previously have discussed, relies, in turn, upon Arkansas's vehicle registration and licensing laws. Another, and more important reason, is if Arkansas's vehicle registration laws are not considered when construing 21-9-303(a), absurd results would be reached. For example, if we limited the construction of 21-9-303(a) to require political subdivisions to carry liability insurance on all motor vehicles meeting the definition found in 27-19-206, a self-propelling riding lawn mower would qualify, thereby requiring the school district to include its mowers under liability coverage. This same rationale would include any self-propelled vehicle even though it is not designed or used primarily for transportation of persons or property. If we were to construe 21-9-303(a) without considering all relevant provisions of Arkansas's vehicle registration laws and Motor Vehicle Responsibility Act, another absurdity would arise by requiring political subdivisions to acquire liability insurance coverage on vehicles, which no one else in the state would be required to insure. We decline any interpretation of 21-9-303(a) that would result in an absurdity or injustice. Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985).

We believe the General Assembly, in requiring political subdivisions to purchase motor vehicle liability insurance, never intended non-registered vehicles to be covered. In passing 21-9-303, the legislature undoubtedly was aware of how Arkansas's Motor Vehicle Responsibility Act and vehicle registration laws worked together in requiring security deposits and liability insurance coverage only on those vehicles which are subject to registration. In keeping with this view, we have held that in construing any statute, we should place it beside other statutes relevant to the subject and give it a meaning and effect derived from the combined whole. City of Fort Smith v. Brewer, 255 Ark. 813, 502 S.W.2d 643 (1973).

In sum, in applying Arkansas's registration laws, we find, as may reasonably be expected, that mowers and other vehicles not designed for transportation purposes are designated as special mobile equipment and exempted from registration. Ark. Code Ann. 27-14-703(4) and 27-14-211 (1987). Thus, self-propelling mowers and other equipment not designed or intended for transportation purposes -- being exempt from registration are not required to comply with the security deposit or liability insurance provisions required under the Act. For the same reason, the Huntsville School District in the present case was not required to insure its tractor, because the vehicle is an implement of husbandry, which is specifically excluded from vehicle registration under 27-14-703(3). (Cousins, 298 Ark. at 314-15, 767 S.W.2d at 298-99.)

In Cotton v. State, 256 Ark. 527, 508 S.W.2d 738 (1974) the jury made a finding that the defendant had used a firearm in committing robbery and imposed a sentence of twenty-one years.

After the jury was dismissed, the judge added an additional seven years imprisonment to the sentence. The court held:

"Here, though the jury did reply affirmatively to the interrogatory submitted as to whether Cotton used a firearm, the jury did not render the punishment therefor, the seven years being added by the court. This constituted error. Accordingly, this portion of the judgment must be reversed for two reasons. First, the Information did not contain a charge against Cotton of using a firearm in the robbery, and second, the jury did not fix the amount of time to be imposed for violation of this statute." (Cotton v. State, 256 Ark. at 530, 508 S.W.2d at 741.)

In Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984), the court found that the defendant substantially interfered with the victim's liberty despite the short duration of the events.

The defendant forced the victim into her car and demanded a ride out of town. She refused, and he struck her several times and discharged a firearm. After 10-15 minutes, he got out of the car and left.

In Cook v. Sears-Roebuck & Co., 212 Ark. 308, 206 S.W.2d 20, 22 (Ark. 1947) the Supreme Court of Arkansas denied Sears' request for a refund of taxes paid by customers because allowing such a refund would "disregard completely the entire doctrine against unjust enrichment."

The court noted that Sears had no plans to return the money to its customers and was not entitled to a refund unless and until it could remove itself from the rule of unjust enrichment.

In Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987), a property owner in the Robinwood subdivision in Little Rock wanted to divide his lot. The subdivision's restrictive covenants contained no express restriction against lot-splitting.

Nevertheless, the Court held that lot-splitting was prohibited based upon the existence of a general plan of development and the language of three relevant instruments. Two of those instruments recited that "only one single family residence...shall be erected."

In Commission on Pollution Control & Ecology v. Worth James, 264 Ark. 144, 568 S.W.2d 27 (Ark 1978), the Commission on Pollution Control and Ecology denied an application for a permit to construct and operate a sanitary landfill. Id.

The circuit court reversed the Commission's decision and directed Commission to issue the permit. Worth James, 568 S.W.2d at 28.

On appeal, Commission claimed that the "proposed site was unsuitable" for a landfill. Id. The Arkansas Supreme Court disagreed with Commission's argument and held that a permit applicant need not demonstrate need for the landfill site in order to obtain a permit. Worth James, 568 S.W.2d at 29.

While the court did state that a landowner has a "fundamental right to engage in a lawful business," this right was conditioned on the landowner's conforming "to whatever regulations may be in existence in the public's interest." Id.

In Commercial National Bank v. McWilliams, 270 Ark. 826, 606 S.W.2d 363 (Ark. 1980), the Arkansas Supreme Court sided with a lienholder against a downstream purchaser who had purchased a motor home in a different state from the one in which the lienholder had perfected its interest. Id. at 365.

In McWilliams, however, the purchaser did not rely on a clean certificate of title. Id.

Although the purchaser was eventually able to procure a clean certificate of title, he did not do so until after the lienholder had brought a legal action seeking to foreclose its lien. Id.

Because the purchaser had not relied on the issuance of a clean certificate of title, he did not qualify as a bona fide purchaser under U.C.C. Article 9. Id.

In Columbia Mut. Cas. Ins. Co. v. Coger, 35 Ark. App. 85, 811 S.W.2d 345, 347 (Ark. Ct. App. 1991), a truck owned by a lumber company and operated by its employees was delivering lumber when part of the load fell off the truck, landed on the highway, and collided with a van.

The lumber company had a general liability policy with an automobile exclusion similar to the one in this case. Id. The trial court had ruled the exclusion did not apply because negligence was alleged in the maintenance of the straps used to secure the load and in securing the load. Id.

The appellate court reversed, concluding "whether or not the lumber briefly came to rest before being struck by the van, and whether the negligent act was the operation of the vehicle, the securing of the load, or the maintenance of the straps securing the load, the injury and damage clearly arose out of the ownership, maintenance, or use of the truck or attached equipment and was therefore not covered by the policy." Id. at 347.

In Cole v. State (Ark. 1991) 307 Ark. 41, 818 S.W.2d 573, the mentally retarded victim's statement fit within the state's hearsay exception.

The court noted that the 23-year-old witness had the mental capacity of a six or seven-year-old child, and applied the same rationale it would apply in a case involving a young child. (Id. at pp. 575-576.)

The court considered the circumstances surrounding the victim's statements and determined that to the extent the statements fit within the hearsay exception they were admissible. (Id. at p. 576.) Only when the statement failed to satisfy the requirements of the exception did the court rule the statement inadmissible.

In Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990), the victim testified, without objection, that his insurance company paid him a certain amount for both stolen and damaged property.

The Court held that the hearsay evidence, which was admitted without objection, could constitute substantial evidence to support a conviction.

In Christian v. State, 6 Ark. App. 138, 639 S.W.2d 78 (1982), the appellant claimed the trial court abused its discretion by not granting appellant's motion for continuance where a witness for the State was not at trial. Id.

The court stated:

Appellant should have given the court the evidence that he expected to offer through the witness's testimony. Only then would the court be in the position to properly weigh such proffered evidence in light of appellant's own self-incriminating statement and the other evidence that were available to prove the charges against him. Appellant was not prevented from offering testimony that he honestly expected to elicit from the witness if he had been available to testify at the trial. It was his burden to do so, and he failed. Because of this fact, the trial court was in no position to weigh the prejudicial impact of the witnesses's absence. Consequently, we are unable to say it abused its discretion in denying appellant's motion to continue. Since appellant proffered no testimony, it is just as easy to speculate that he did not know what testimony the witness would give . . .(Christian, 6 Ark. App. at 141-42, 639 S.W.2d at 80.)

In Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981), the witness, appellant's sister, professed to have forgotten what she told the sheriff concerning the shooting death of a Mr. Rackley; in her testimony, she testified to nothing unfavorable to appellant, and she could not remember any of her statements to the sheriff that implicated appellant.

The trial court allowed the sheriff and his secretary to narrate the statement made by the witness, and our supreme court ruled that this evidence was properly admissible despite the witness's professed lack of memory, relying upon the following reasoning from Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889):

"The statute does not place the right to impeach a witness by proof of contradictory statements, upon the condition of his denial. It requires his cross-examination upon the matter; nothing more. This is exacted in order that he may explain apparent contradictions and reconcile seeming conflicts and inconsistencies. If he cannot remember the fact, he is unable to do what the law affords him the opportunity to do. If he cannot remember the statement made, it is quite as probable that his recollection of the occurrence about which he testifies is inaccurate or incorrect. If contradiction properly affects the value of his testimony when he denies, it is difficult to see why it should not when he ignores the contradictory or inconsistent statements. The testimony is discredited because he affirms today what he denied yesterday; the legitimate effect of such contradiction cannot depend upon his power to remember it. If the defect in the memory is real, the proof of the contradiction apprises the jury of this infirmity of the witness; if he has made a false statement under the pretense of not remembering, he should not escape contradiction and exposure. We think the evidence was properly admitted." (273 Ark. at 8, 616 S.W.2d at 731.)

In Chisum, supra, the defense objected to the proffered statements on hearsay grounds, and the trial court admitted the statements, finding that they were admissible for impeachment as inconsistent out-of-court statements.

In Childs v. Copper Valley Electric Ass'n, 860 P.2d 1184, 1190 (Ak. 1993), the plaintiff argued that because the employer had paid initial medical bills, the employer was estopped from denying any further liability. 860 P.2d at 1190.

The court found the trial judge was correct in rejecting this argument on public policy grounds. Id.

The trial judge concluded that to hold otherwise "would encourage every employer to dispute an employee's claim to the fullest extent possible, since any payment of benefits might be seen as a concession of liability." Id.

In Chaffin v. Ark. Game & Fish Comm'n, 296 Ark. 431, 757 S.W.2d 950 (Ark. 1988), the court was presented with a constitutional challenge to an appropriations bill. Specifically, the challenged legislation prohibited the Fish and Game Commission from entering into contracts for professional and consultant services which either extend more than 20 working days, or exceed $ 5,000.00, without first seeking the advice of the legislature. Chaffin, 757 S.W.2d at 956.

After receiving a contract, a committee of the Legislative Council reviews the contract and stamps it favorable or unfavorable. Id. Although the stamp of approval or disapproval was not binding on the agency, the court found that "the 'advice' offered by the legislative committee to an agency is tantamount to a legislative order on how to execute a contract." Id.

The court held the requirement that the agency submit its contracts for legislative advice to be in violation of the separation of powers doctrine, and therefore unconstitutional. Id.

In Car Transportation v Garden Spot Distributors, 305 Ark. 82, 805 S.W.2d 632, 633 (1991), the defendant trucking company agreed to transport food products from California to the East Coast. During the transport of these goods, the truck broke down in Arkansas, where the carrier discovered that the sellers of the goods owed it more than $ 9,000 for previous trucking services. Id. As a result, the carrier demanded payment of $ 15,000 with which to repair the truck and complete delivery. Id.

Upon the sellers' refusal to pay this amount, the carrier refused to deliver the goods and placed them in storage in Arkansas. Id. The goods' buyers, who had paid the sellers in advance, demanded the goods from the carrier but were refused. Id.

Thereafter, the buyers brought suit against the carrier for conversion and were subsequently awarded damages. Id.

On appeal, the carrier argued that it could not be held liable for conversion because, pursuant to a statute identical to MCL 440.7307(1); MSA 19.7307(1), it legitimately had the right to assert a lien against the goods shipped for a debt due from the sellers for past services. Car Transportation, 305 Ark. at 86, 805 S.W.2d at 634.

In addressing this argument, the Arkansas Supreme Court held that the carrier had no lien on the goods under the proffered statute because "a lien on presently transported goods for a prior debt is not contemplated under the Uniform Commercial Code." Id.

Thus, the court reasoned, "if a lien defense is available to the motor carrier, it can only be asserted against currently transported goods for freight charges that remain unpaid." Id.

In Carter v. Meek, 1998 Ark. (CA 98-264), an unpublished opinion delivered on October 28, 1998, we found that Mr. Carter was not entitled to notice and affirmed the order approving the wrongful-death settlement.

In the first appeal, Mr. Carter also contended that the probate court erred in failing to hold a hearing on his motion to set aside the order admitting the will to probate and appointing a personal representative, but we declined to address that issue because it was raised for the first time in his reply brief.

After the Court issued our mandate, the trial court heard Mr. Carter's motion to set aside the order admitting the will to probate and appointing Mrs. Meek personal representative. During the hearing, Mr. Carter argued that the will should not have been admitted to probate because it was not proved by any accepted method set out in Ark. Code Ann. § 28-40-117 (1987), which provides in pertinent part:

(a) An attested will shall be proved as follows:

(1) By the testimony of at least two (2) attesting witnesses, if living at known addresses within the continental United States and capable of testifying; or

(2) If only one 1 or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying, or if, after the exercise of reasonable diligence, the proponent of the will is unable to procure the testimony of two (2) attesting witnesses, in either event the will may be established by the testimony of at least two (2) credible disinterested witnesses. The witnesses shall prove the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence.

The probate court refused to set aside its prior order, and issued an order on May 24, 1999, which stated, "the Order Admitting Will to Probate is hereby affirmed and the Proof of Will and its attestation were adequately shown by the evidence herein." Mr. Carter now appeals from the May 24, 1999, order, arguing that the trial court erred in admitting the will to probate because (1) the proponent failed to prove the will by either two attesting witnesses or two credible disinterested witnesses, and (2) there was no showing that any diligence was exercised in procuring the testimony of one of the attesting witnesses.

In Carruthers v. State (1997) 59 Ark.App. 239, 956 S.W.2d 201, officers conducting an undercover operation at a business saw three people running. The officers caught and released two men. The probationer fled when the officers saw him behind a house but was apprehended. A set of electronic scales, a bag of marijuana, and a bag of rock cocaine were found in an alley 45 feet from where the probationer was first observed. Two pagers and $ 1,000 in cash were found on the probationer. (Id. at pp. 240-241.)

In reversing the trial court's finding that the probationer violated his probation, the Arkansas appellate court noted that there was no evidence the probationer was at the location where the contraband was actually found, he was not seen throwing anything, the contraband was not found along the chase route, and although fingerprints were taken off the bags, none of them belonged to the probationer. (Id. at p. 241.)

In Carroll Electric Cooperative Corp. v. Benson, 319 Ark. 68, 889 S.W.2d 756 (1994), the Court heard a second appeal of a case it had remanded the previous year.

In the first appeal, the court held that Carroll Electric had a right to an easement over part of Benson's property for the purpose of extending power lines. The case was remanded to allow the chancellor to decide whether the route chosen for the lines was reasonable.

Upon remand, the chancellor found that the route would be reasonable if the lines were placed underground. Carroll Electric appealed on the ground that the chancellor had exceeded the scope of the remand.

The supreme court agreed that the chancellor's decision that the lines would have to be placed underground exceeded the original mandate.

In Campbell v. Southwestern Telegraph & Telephone Co., 108 Ark. 569, 158 S.W. 1085 (1913), a railroad company purchased from an individual owner in 1885 a fifty-foot-wide right of way in order to build a railroad and roadbed, but this deed was not recorded until after the appellant had purchased her land in 1900. The railroad was built and was occupied by the company before 1900. Residents cultivated the lands up to the roadbed without objection from the railroad.

In 1903 a telephone company obtained a right of way from the railroad and constructed telephone lines parallel to the railroad. The appellant sued the telephone company to recover damages for poles that were placed on her property.

The trial court found that the railroad had been constructed and that the company's occupancy of the roadbed was sufficient to put all persons on inquiry as to the extent of the railroad company's rights. There were only three poles placed on the appellant's property, and the court ordered that those poles be removed within sixty days. The other seven poles that the appellant claimed were on her land were actually in the roadbed and therefore did not have to be removed.

The appellate court affirmed the trial court's finding that the occupancy of the railroad and roadbed in this case was sufficient to put the appellant on notice.

In Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999), the court reversed an order changing custody from the children's father to their mother. The chancellor had modified the original custody order based on changed circumstances in the mother's life and the younger child's desire to live with his mother. After carefully examining the record, the court was unable to say that there had been a material change in circumstances warranting the removal of the children from the father's custody.

In its ruling, the court observed that the children were functioning well in the father's custody, taking note of the chancellor's statement that the father had done an outstanding job in raising the children against tough odds.

The court said that it would be wrong to uproot the children when the preponderant evidence showed that they were doing well.

In Calnan v. State, 310 Ark. 744, 749, 841 S.W.2d 593, 596 (1992), the Court explained:

"The Arkansas Constitution and Rules of Criminal Procedure assume a defendant will be tried by a jury unless that right is expressly waived. The law providing the manner of waiver is obviously designed to assure that the jury trial right is not forfeited by inaction on the part of a defendant. The contemporaneous objection rule does not apply in this circumstance and the conviction must be reversed."

In Bussey v. State, 69 Ark. 545, 64 S.W. 268 (1901), after conviction for a rape and a sentence of death, the petitioner submitted an affidavit by the complaining witness retracting her accusation. 64 S.W. at 268.

The analysis of the Arkansas Supreme Court puts into perspective the Fifth Amendment issue as well as any concern that the allowing of recanted testimony to overturn convictions would lead to a landslide of such claims:

If it be said that to permit a witness, by a confession of perjury, to overturn a judgment based on her testimony would license her to trifle with the courts, we must reply that such a witness undoubtedly deserves to be punished; but this furnishes no reason for the refusal of justice to the defendant. It is the witness, and not the defendant that has trifled with the court, and she, and not the defendant should suffer for such contempt. The court and jury, relying on the testimony of this witness as that of a truthful and trustworthy woman, have convicted the defendant, and sentenced him to be hanged; but, if her affidavit is true, her testimony is false, and the judgment wrong. The circumstances under which she made this written retraction of her former testimony are such as to raise the belief that the retraction, and not the testimony is true and that, if this judgment is enforced, the defendant will suffer death for a crime of which he is not guilty. But whatever the truth may be, whether the defendant be guilty or innocent, it can be established by another trial; and certainly it is better that this case be retried than to enforce a judgment for the extreme penalty of death, when the newly - discovered evidence that could not be produced at the trial makes it seem probable that this judgment was wrong. (64 S.W. at 269.)

In Bushmiaer v. City of Little Rock, 231 Ark. 848, 333 S.W.2d 236 (1960) the Court interpreted the statutory provisions governing the use of dedicated easements-that a city of the first class does not abandon a publicly dedicated easement by non-use.

The court observed that neither adverse possession nor the equitable doctrine of laches could be successfully invoked to defeat the right of the city to open the street which was dedicated to that use. Id. In other words, once an easement has been dedicated to the public and there has been given appropriate notice by platting, owners of lots abutting on the platted street are presumed to have had knowledge of the city's right to proceed in its own time to open the street.

In Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997), the Arkansas Supreme Court explained probable cause to make a traffic stop:

In Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), the United States Supreme Court recently explained that a police officer may stop and detain a motorist where the officer has probable cause to believe that a traffic violation has occurred. For example, in Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994), we held that an officer had probable cause to stop a motorist when he discovered that the vehicle bore a license plate which was issued to a different car in violation of Ark. Code Ann. § 27-14-306 (Repl. 1994). Thus, the relevant inquiry is whether Captain Best had probable cause to believe that Burris was committing a traffic offense at the time of the initial stop.

We have previously explained that probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994); Johnson v. State, 299 Ark. 223, 772 S.W.2d 322 (1989). In assessing the existence of probable cause, our review is liberal rather than strict. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997). (330 Ark. at 71-2, 954 S.W.2d at 212.)

Recent Comments by comp_import

No comments by comp_import yet.