{ "id": 1886832, "name": "R.S. McCULLOUGH v. Jack L. LESSENBERRY, Circuit Judge, Pulaski County Court, Fifth Division", "name_abbreviation": "McCullough v. Lessenberry", "decision_date": "1989-11-20", "docket_number": "89-93", "first_page": "426", "last_page": "431", "citations": [ { "type": "official", "cite": "300 Ark. 426" }, { "type": "parallel", "cite": "780 S.W.2d 9" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "253 Ark. 196", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627332 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/253/0196-01" ] }, { "cite": "237 Ark. 293", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737956 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/ark/237/0293-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-10-108", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "299 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888426 ], "weight": 3, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0103-01" ] }, { "cite": "250 Ark. 822", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636845 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/250/0822-01" ] }, { "cite": "261 Ark. 614", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678986 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/261/0614-01" ] }, { "cite": "264 Ark. 83", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1669000 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/264/0083-01" ] }, { "cite": "287 U.S. 435", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 369577 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/us/287/0435-01" ] } ], "analysis": { "cardinality": 512, "char_count": 8861, "ocr_confidence": 0.914, "pagerank": { "raw": 2.6534836040387644e-07, "percentile": 0.8242579007501982 }, "sha256": "325ec67e1241c1c74fe368708bf0631022796c81fa1c83f76a5227524a3bbfad", "simhash": "1:2a46cd4c3e065d8d", "word_count": 1521 }, "last_updated": "2023-07-14T15:14:13.062447+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "R.S. McCULLOUGH v. Jack L. LESSENBERRY, Circuit Judge, Pulaski County Court, Fifth Division" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nAppellant, R.S. McCullough, an attorney licensed to practice law in Arkansas, appeals from an order of the trial court finding him in contempt and imposing as punishment that he provide free legal services to a defendant in a case to be chosen by the court. We reverse and remand.\nOn August 24,1988, McCullough was representing Hurley M. Jones on a charge of possession of a controlled substance with intent to deliver. Jones had been arrested by North Little Rock police, who had used a confidential informant to approach him to buy drugs. Jones had raised entrapment as a defense to the charge.\nThe informant, Kenneth Gilmore, had two prior misdemeanor convictions originating out of the North Little Rock Police Department, both of which were the result of reduced felony charges against him. In chambers, prior to trial, the deputy prosecuting attorney requested that the court not allow the informant to be impeached with the convictions.\nThe following exchange then occurred:\nThe Court: Well, no one can impeach anyone on a misdemeanor unless it involves a crime of dishonesty.\nR.S. McCullough: Before we leave that point, Judge, I\u2019d like to come back there whenever we get together because I\u2019ve got some cases that says the deposition is wrong on that. In an entrapment scenario it is, matters that are not, might not usually be admissible are admissible because they specifically relate to the defendant\u2019s right to pursue the entrapment defense and I\u2019ve got some cases that specifically allow not only that type of information to be dealt with, but not only that but whether or not the person is a convicted, I mean a known drug user or addicted which normally would have no relevance. But the Court says it has relevance in an entrapment case.\nThe Court: I\u2019m not going to limit you on the issues of credibility and a person being addicted and being an informant would be an issue going to his credibility. But I\u2019m not going to permit misdemeanors to be used to impeach the credibility of the witness on the kind of issues I understand are before me. Whenever they develop you raise those issues and I will hear them.\nR.S. McCullough: Well, your Honor, before you really lock up a ruling I\u2019d like to at least look at the other case. Let you look at the other case.\nThe Court: I\u2019d be glad to do that. And I asked you to raise that issue when you\u2019re ready to.\nR.S. McCullough: Well, okay.\nThe Court: If that doesn\u2019t suit you I\u2019m sorry. That\u2019s the ruling of the Court and if I am in error in that respect then you\u2019ll get a reversal.\nR.S. McCullough: Okay. Well \u2014\nThe Court: You have an issue you want to raise, raise it.\nR.S. McCullough: Well Judge, I\u2019m really just trying to avoid a situation. I don\u2019t want to make you mad or anything out there in front of the jury or anything by bringing it up.\nThe Court: You are not going to make me mad. I just want you to when you\u2019ve got an issue and you\u2019re ready to present it then let me know about it at this time. I\u2019ve told you what I expect my ruling will be.\nR.S. McCullough: All right.\nDuring cross-examination of the informant, Mr. Gilmore, the following exchange took place:\nR.S. McCullough: Mr. Gilmore, isn\u2019t it true that you first got involved with the police period on doing these type of cases occurred when you got arrested \u2014\nMr. Gilmore: No.\nMr. Black (deputy prosecutor): Objection.\nCounsel for the State and the defense approached the bench and conferred with the court, out of the hearing of the jury:\nThe Court: What was the question?\nR.S. McCullough: I asked him wasn\u2019t it true that he first got involved with the police in reference to these type of transactions when he himself got arrested.\nThe Court: Is there any evidence he was ever arrested for anything?\nMr. Black: Yes, sir. He\u2019s been arrested and convicted of a misdemeanor, your Honor. The whole reason for that question is to get that in through the back door where he can\u2019t ask him direct.\nR.S. McCullough: No, I can get that in through the front door, your honor. I\u2019ve got case law that supports that.\nThe Court: All right. We\u2019ll have a recess and you can show it to me.\nDuring recess, McCullough cited and attempted to discuss in detail several cases with the trial court in support of his position that prior arrests and misdemeanor convictions are admissible on cross-examination where the defense of entrapment is raised inasmuch as the arrests and convictions pertain to motive, plan, or intent of the informant. See Sorrells v. United States, 287 U.S. 435 (1932); Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Brascomb v. State, 261 Ark. 614, 550 S.W.2d 450 (1977). As a result, the following dialogue took place:\nThe Court: May I \u2014 Well, no, I\u2019m not sure you understand what the issue is. Did you understand my ruling in Chambers about that?\nR.S. McCullough: I understood the Court to say at that time that you hadn\u2019t made a ruling because the point hadn\u2019t been raised and that I was not allowed to present anything at that time. You said to simply raise it and at the time it came up.\nThe Court: And I would rule upon it. R.S. McCullough: We\u2019d deal with it then. That\u2019s what I thought.\nThe Court: I find you in contempt. The punishment for contempt will be imposed after trial.\nBy order of January 9,1989, the trial court found that R.S. McCullough willfully violated an order of the court and therefore found him to be in contempt. As punishment, the court ordered McCullough to represent a defendant free of charge in a case of the court\u2019s own choosing. From this order, McCullough appeals.\nFor reversal, McCullough contends that the trial court erred in finding him in contempt of court for willful violation of an order of the court inasmuch as the court made no ruling on the admissibility of the informant\u2019s arrests or convictions for the purpose of showing motive, plan, or intent of the informant. We agree.\nAppellee concedes in his brief that this is a case involving criminal contempt. In criminal contempt cases, this court examines the record on appeal for substantial evidence to support the decision of the trial court. Morrow v. Roberts, 250 Ark. 822, 467 S.W.2d 393 (1971). See also Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989).\nArk. Code Ann. \u00a7 16-10-108 (a) (1987) provides in pertinent part: \u201cEvery court of record shall have the power to punish, as for criminal contempt, persons guilty of the following acts, and no others:... (3) Willful disobedience of any process or order lawfully issued or made by it.\u201d See Hall v. State, 237 Ark. 293, 372 S.W.2d 603 (1963). However, the general rule is that before a person may be held in contempt for violating a court order, that order must be in definite terms as to the duties thereby imposed upon him, and the command must be expressed rather than implied. Woody. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972). See also Lilly v. Earl, supra.\nIn examining the conversations between McCullough and the trial court, it is readily apparent that the court did not issue any orders in definite terms as to the duties imposed upon McCullough, nor is there substantial evidence to support the decision of the trial court.\nGranted, the court advised McCullough that it \u201cwas not going to permit misdemeanors to be used to impeach the credibility of a witness. . . .\u201d However, the court did not preclude McCullough from probing further into the informant\u2019s arrests and misdemeanor convictions for purposes other than credibility, i.e., to show the motive, plan, or intent of the informant. To the contrary, the court invited McCullough to raise the issue at trial.\nAlthough the court and McCullough spoke of \u201ccredibility\u201d at times, McCullough obviously and understandably comprehended the court\u2019s invitation to mean that he could introduce evidence concerning the informant\u2019s relationship with police to show the informant\u2019s motive, plan, or intent in the alleged entrapment of the defendant. Such evidence may well have been admissible under our rules of evidence. See Ark. R. Evid. 404(b).\nThe court did not issue an order commanding McCullough to refrain from raising the issue of the informant\u2019s prior arrests and misdemeanor convictions for the purpose of showing the informant\u2019s motive, plan, or intent. Nevertheless, the court found him in contempt for doing so. At most, we have a misunderstanding between the parties .as to the purpose of McCullough\u2019s cross-examination. This misunderstanding does not provide the basis for a finding of willful disobedience of a court order. We reverse and remand.\nReversed and remanded.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Friday, Eldredge & Clark, by: Jerry L. Malone, for appellant.", "Wallace, Dover & Dixon, by: Joseph H. Purvis, for appellee." ], "corrections": "", "head_matter": "R.S. McCULLOUGH v. Jack L. LESSENBERRY, Circuit Judge, Pulaski County Court, Fifth Division\n89-93\n780 S.W.2d 9\nSupreme Court of Arkansas\nOpinion delivered November 20, 1989\nFriday, Eldredge & Clark, by: Jerry L. Malone, for appellant.\nWallace, Dover & Dixon, by: Joseph H. Purvis, for appellee." }, "file_name": "0426-01", "first_page_order": 454, "last_page_order": 459 }